[Cite as State v. Johnson, 2017-Ohio-7102.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1014
Appellee Trial Court No. CR0200603545
v.
Tyrone Johnson DECISION AND JUDGMENT
Appellant Decided: August 4, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Tyrone R. Johnson, pro se.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, Tyrone Johnson, appeals the December 29, 2016
judgment of the Lucas County Court of Common Pleas, denying his motion for relief
from judgment, construed by the court as a petition for postconviction relief. For the
reasons that follow, we affirm the trial court judgment.
I. Background
{¶ 2} In 2007, a jury convicted Johnson of two counts of aggravated murder,
violations of R.C. 2903.01(B) and (F), one count of aggravated robbery, a violation of
R.C. 2911.01(A)(1), and accompanying firearms specifications. Johnson filed a direct
appeal from that verdict, followed by a number of other petitions and motions, some of
which culminated in appeals filed with this court. State v. Johnson, 6th Dist. Lucas Nos.
L-07-1193 and L-08-1230, 2009-Ohio-45; State v. Johnson, 6th Dist. Lucas Nos. L-12-
1178 and L-12-1257, 2013-Ohio-1718; State v. Johnson, 6th Dist. Lucas No. L-16-1170,
2016-Ohio-8525.
{¶ 3} On December 8, 2016, Johnson filed what he styled as a Civ.R. 60 motion
for relief from judgment. He argued that the trial court violated his Fourteenth
Amendment right to equal protection when, at a suppression hearing, it allowed a
recording of his police interrogation to be submitted for the court’s review instead of
played in open court in his presence. He maintained that he did not see the tape until nine
years later when a copy was requested by the Ohio Innocence Project, and he insisted that
the recording had been edited. Johnson also complained that the state lacked direct
evidence of his guilt, and that while it initially sought his testimony against his co-
defendant, Latrel Brown, it ultimately offered a plea agreement to Brown in exchange for
his testimony against Johnson. He characterized this as “new or additional information”
constituting fraud, inherently affecting the accuracy and reliability of the judgment, and
contradicting the indictment.
2.
{¶ 4} In a judgment filed on December 29, 2016, the trial court construed
Johnson’s motion as a petition for postconviction relief and denied it as untimely under
R.C. 2953.23. Johnson appealed, assigning the following error for our review:
TRIAL COURT IMPROPERLY DENIED A HEARING
PURSUANT TO CIVIL RULE 60(B)5 [sic] AND CIVIL RULE 58(B).
II. Law and Analysis
{¶ 5} Johnson’s sole assignment of error challenges the trial court’s denial of a
hearing on his motion, however his arguments in both the trial court and in this court
focus primarily on the denial of his motion—not the denial of a hearing. Before
considering the merits of Johnson’s appeal, we address the threshold issue of whether the
trial court properly treated his motion as one for postconviction relief—one of several
filed over the years—despite the fact that it was styled as a motion for relief from
judgment.
{¶ 6} The Ohio Supreme Court recognized in State v. Schlee, 117 Ohio St.3d 153,
2008-Ohio-545, 882 N.E.2d 431, syllabus, that a trial court may recast an appellant’s
motion for relief from judgment as a petition for postconviction relief even where the
motion has been unambiguously presented as a Civ.R. 60(B) motion. Citing its decision
in State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1999), the court observed that
a motion should be cast as one for postconviction relief under R.C. 2953.21(A)(1) where
it is “(1) filed subsequent to [the defendant’s] direct appeal, (2) claim[s] a denial of
3.
constitutional rights, (3) [seeks] to render the judgment void, and (4) ask[s] for vacation
of the judgment and sentence.” Id., quoting Reynolds at 160.
{¶ 7} Here, Johnson’s motion was filed well after his direct appeal, it claimed a
denial of his right to equal protection, it alleged that the trial court lacked proper
jurisdiction, and it asked that the judgment against him be set aside. We, therefore, find
that the trial court properly treated Johnson’s motion as a petition for postconviction
relief. We review a trial court’s denial of a petition for postconviction relief under an
abuse of discretion standard. State v. Myers, 6th Dist. Wood No. WD-16-026, 2017-
Ohio-1220, ¶ 7. “Abuse of discretion” implies that the trial court acted unreasonably,
arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶ 8} At the time of Johnson’s conviction, R.C. 2953.21(A)(1)(b)(2) required that
unless otherwise provided in R.C. 2953.23, a petition for postconviction relief must be
filed within 180 days after the date on which the trial transcript is filed in the court of
appeals. That deadline has since been changed to 365 days. R.C. 2953.21(A)(1)(j)(2) (as
numbered as of the date that Johnson filed his motion in the trial court). Under R.C.
2953.23, a court may entertain untimely or successive petitions for postconviction relief
only under very limited circumstances:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely
4.
to present the claim for relief, or * * * the United States Supreme Court
recognized a new federal or state right that applies retroactively to persons
in the petitioner’s situation, and the petition asserts a claim based on that
right.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted
* * *.
(2) The petitioner was convicted of a felony, the petitioner is an
offender for whom DNA testing was performed * * * and analyzed in the
context of and upon consideration of all available admissible evidence
related to the inmate’s case * * *, and the results of the DNA testing
establish, by clear and convincing evidence, actual innocence of that felony
offense * * *.
{¶ 9} Johnson does not allege that there exists a new federal or state right
recognized by the U.S. Supreme Court, or that DNA testing establishes his innocence.
Instead, while not clearly argued in the trial court, Johnson claims to have been
unavoidably prevented from obtaining the recording of his police interrogation. He also
continues to complain that Brown was offered a plea agreement in exchange for his
testimony. We find that Johnson was not unavoidably prevented from obtaining this
information.
5.
{¶ 10} First, as to Brown’s testimony, Johnson had the opportunity to cross-
examine him at trial. And as to the recording of his interrogation, (1) Johnson’s motion
makes clear that the recording was submitted for the court’s review in February of 2007,
thus he knew of its existence and could have asked his trial counsel to play the recording
for him; and (2) he concedes that the Ohio Innocence Project obtained a copy of the
recording for him in May of 2015, yet he did not file his motion until December 8,
2016—well over a year later. Accordingly, no R.C. 2953.23 exception excuses
Johnson’s failure to file his motion within the time proscribed by R.C. 2953.21.
{¶ 11} This court has recognized that where a petition for postconviction relief “is
untimely and the petitioner does not show he was unavoidably prevented from
discovering the facts upon which he now relies, the petition should be denied without a
hearing.” State v. Alvarado, 6th Dist. Lucas No. L-16-1077, 2017-Ohio-2810, ¶ 26,
citing State v. Baker, 8th Dist. Cuyahoga No. 78453, 2001 Ohio App. LEXIS 1305, *7
(Mar. 22, 2001). Given our conclusion that Johnson’s petition was untimely, we find no
abuse of discretion in the trial court’s denial of Johnson’s motion, and we find that
Johnson was not entitled to a hearing on his petition.
{¶ 12} Accordingly, we deny Johnson’s sole assignment of error.
{¶ 13} Conclusion
{¶ 14} Johnson’s motion for relief from judgment was properly construed by the
trial court as a petition for postconviction relief, and was properly denied without a
6.
hearing because it was both successive and untimely. We, therefore, affirm the
December 29, 2016 judgment of the Lucas County Court of Common Pleas. Johnson is
ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
7.
State v. Johnson
Combined Opinion