[Cite as State v. Upham, 2018-Ohio-625.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1060
Appellee Trial Court No. CR0201101176
v.
Steven T. Upham DECISION AND JUDGMENT
Appellant Decided: February 16, 2018
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Andrew J. Lastra, Assistant Prosecuting Attorney, for appellee.
Steven Upham, pro se.
*****
OSOWIK, J.
{¶ 1} This is an appeal from a February 17, 2017 judgment of the Lucas County
Court of Common Pleas, denying appellant’s untimely motion for postconviction relief
arising from appellant’s 2011 conviction of one count of complicity to commit murder, in
violation of R.C. 2923.02, with an accompanying firearm specification.
{¶ 2} On April 14, 2011, appellant was sentenced to a total term of incarceration
of 13 years. For the reasons set forth below, this court affirms the judgment of the trial
court.
{¶ 3} Appellant, Steven Upham, sets forth the following assignment of error:
The trial court abused its discretion when it dismissed appellant’s
motion to dismiss or to support a conviction in the event that one should be
had in violation of [the] 5[th] amendment and [the] 14[th] amendment due
process.
{¶ 4} The following undisputed facts are relevant to this appeal. On the night of
January 22, 2011, appellant called a former girlfriend and requested that she pick him up
and transport him to another location for purposes of buying heroin.
{¶ 5} After driving the victim’s vehicle several blocks away from the initial
location to a nearby West Toledo intersection, appellant stopped the car, pulled out a
firearm, and shot the victim in the left side of her head. Appellant fled the scene. The
victim was able to drive the vehicle to a nearby carryout. The carryout personnel
summoned emergency medical personnel and the victim was transported to an area
hospital.
{¶ 6} The victim’s injuries from the shooting required in excess of 100 stitches
and resulted in left eye damage.
2.
{¶ 7} On January 31, 2011, appellant was indicted on two counts of felonious
assault with a firearm, in violation of R.C. 2903.11, felonies of the second degree, and
one count of attempted murder, in violation of R.C. 2923.02, a felony of the first degree.
{¶ 8} On April 12, 2011, the case proceeded to jury trial. Following jury trial,
appellant was found guilty of attempted murder with an accompanying firearm
specification, in violation of R.C. 2923.02, and sentenced to a total term of incarceration
of 13 years.
{¶ 9} Prior to the present matter, appellant filed a direct appeal to this court. On
January 18, 2013, this court affirmed the conviction and sentence of the trial court. State
v. Upham, 6th Dist. Lucas No. L-11-1088, 2013-Ohio-132.
{¶ 10} On January 30, 2017, over four years after this court’s denial of appellant’s
direct appeal, appellant filed a, “Motion to Dismiss or to Support a Conviction,” the
contents of which constituted a motion for postconviction relief.
{¶ 11} On February 17, 2017, the trial court denied appellant’s motion. The trial
court held in pertinent part, “The Court finds that the Defendant has not been
unavoidably prevented from discovering the facts * * * Defendant’s motion/petition is
untimely, without excuse, and the court has no jurisdiction to consider his motion.
Additionally, res judicata bars Defendant’s motion/petition.” This appeal ensued.
{¶ 12} In appellant’s sole assignment of error, appellant maintains that the trial
court erred in denying appellant’s 2017 motion related to his 2011 case. We do not
concur.
3.
{¶ 13} R.C. 2953.21 establishes that a petition for postconviction relief must be
filed within 180 days after the day upon which trial transcripts are filed in the course of a
direct appeal. R.C. 2953.23 permits an untimely filing conditioned upon a movant
establishing that he was, “[U]navoidably prevented from discovering the facts upon
which he relied for his claim.”
{¶ 14} The record reflects that the filing of the transcripts in appellant’s direct
appeal of his 2011 conviction occurred in 2012. The record further reflects that
appellant’s direct appeal was denied on January 18, 2013. The record reflects that
appellant’s current motion for postconviction relief was filed approximately four years
after the expiration of the applicable statutory filing deadline. Lastly, the record reflects
that appellant presented no evidence demonstrating unavoidable prevention of fact
discovery so as to arguably warrant the untimely filing.
{¶ 15} Based upon the foregoing, this court finds that the trial court properly
denied appellant’s January 30, 2017 motion for postconviction relief. The record is
devoid of any evidence that could arguably demonstrate the disputed motion denial to be
improper. Wherefore, we find appellant’s assignment of error to be not well-taken.
{¶ 16} On consideration whereof, the judgment of the Lucas County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
4.
State v. Upham
C.A. No. L-17-1060
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
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
5.