[Cite as State v. Dudas, 2023-Ohio-535.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111875
v. :
MICHAEL DUDAS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 23, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-650250-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Michael Dudas, pro se.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant Michael Dudas appeals the denial of his petition
for postconviction relief. He contends that the trial court erred in denying his
petition without making findings of fact and conclusions of law and that the trial
court should have granted his petition based on his claims of ineffective assistance
of counsel and prosecutorial misconduct. For the reasons that follow, we affirm the
trial court.
Procedural History and Factual Background
On January 19, 2021, Dudas pled guilty to one count of aggravated
murder (an unclassified felony), one count of aggravated robbery (a first-degree
felony) and two counts of misuse of a credit card (a fifth-degree felony). On
January 20, 2021, the trial court sentenced Dudas to an aggregate sentence of 28 to
29.5 years to life: 25 years to life on the aggravated murder count, an indefinite
sentence of three to four- and one-half years on the aggravated robbery count (to be
served consecutively to the sentence on the aggravated murder count) and one year
on each of the misuse of a credit card counts (to be served concurrently to each other
and concurrently with the sentences on the other counts).
On June 7, 2021, Dudas filed, pro se, a notice of appeal along with a
motion for delayed appeal. On June 15, 2021, this court granted Dudas’ motion for
delayed appeal and appointed counsel to represent him in the appeal. The trial
transcript was filed on July 26, 2021 in Dudas’ delayed appeal.
On appeal, Dudas argued that the indefinite sentence imposed under
the Reagan Tokes Law on the aggravated robbery count was unconstitutional and
violated his right to due process, the separation-of-powers doctrine and his right to
a jury trial. On March 24, 2022, this court affirmed Dudas’ convictions and
sentences. State v. Dudas, 8th Dist. Cuyahoga No. 110573, 2022-Ohio-931.
On July 14, 2022, Dudas filed a “petition to vacate or set aside
judgment of conviction or sentence” pursuant to R.C. 2953.21 in which he argued
that (1) he was denied the effective assistance of trial counsel and (2) he was denied
due process due to “prosecutorial misconduct” before he entered his guilty pleas.
On July 20, 2022, the trial court summarily denied Dudas’ petition for
postconviction relief.
Dudas appealed, raising the following four assignments of error for
review:
Assignment of Error One:
The court abuse of [sic] discretion and erred in issuing inadequate and
erroneous findings of fact and conclusion [sic] of law in regard to
petitioner Mr. Dudas[’] petition for postconviction relief.
Assignment of Error Two:
The court of [sic] appointed counsel * * * committed ineffective
assistance of counsel before the appellant, Mr. Dudas, entered a plea of
guilty when counsel’s [sic] failed to request a competency evaluation to
the court to contest Mr. Dudas[’] mental state which effective [sic] the
defendant knowingly, intelligently and voluntarily [sic] plea of guilty in
violation of the Sixth Amendment to the United States Constitution and
Section 10 Article I of the Ohio Constitution.
Assignment of Error Three:
The court of [sic] appointed counsel * * * committed ineffective
assistance of counsel before the appellant, Mr. Dudas, entered a plea of
guilty under Crim.R. 11(A) to aggravated murder, R.C. 2901.01[,] and
Mr. Dudas[’] plea was not made knowingly, intelligently and
voluntarily and the defendant[’] conviction of sentence was supported
by Crim.R. 31(C) and R.C. 2945.74[,] lesser included offense of
voluntary manslaughter R.C. 2903.03(A), in violation of the Sixth
Amendment to the United States Constitution and Section 10 Article I
of the Ohio Constitution.
Assignment of Error Four:
The state of Ohio denied the appellant, Mr. Dudas, due process or
alternatively committed prosecutorial misconduct before Mr. Dudas
pleaded guilty to aggravated murder R.C. 2901.01 and the state
withheld evidence from the defendant when the circumstance of Mr.
Dudas[’] case warrant [sic] the state to amend indictment Crim.R. 7(D)
to voluntary manslaughter, R.C. 2903.03(A), in violation of due
process and [the] Fifth, Sixth, Eighth [and] Fourteenth Amendment[s]
to the United States Constitution and Section 10 Article I of the Ohio
Constitution.
Law and Analysis
In his first assignment of error, Dudas argues that the trial court
abused its discretion in denying his “timely filed” petition for postconviction relief
without making findings of fact and conclusions of law, as required by R.C.
2953.21(H).
Pursuant to R.C. 2953.21(A)(1)(a)(i), “[a]ny person who has been
convicted of a criminal offense * * * and who claims that there was such a denial or
infringement of the person’s rights as to render the judgment void or voidable under
the Ohio Constitution or the Constitution of the United States” “may file a petition
in the court that imposed sentence, stating the grounds for relief relied upon, and
asking the court to vacate or set aside the judgment or sentence or to grant other
appropriate relief.”
With respect to the timing of a petition for postconviction relief, R.C.
2953.21(A)(2)(a) provides, in relevant part:
Except as otherwise provided in section 2953.23 of the Revised Code, a
petition under division (A)(1)(a)(i), (ii), or (iii) of this section shall be
filed no later than three hundred sixty-five days after the date on which
the trial transcript is filed in the court of appeals in the direct appeal of
the judgment of conviction or adjudication * * *. If no appeal is taken,
except as otherwise provided in section 2953.23 of the Revised Code,
the petition shall be filed no later than three hundred sixty-five days
after the expiration of the time for filing the appeal.
See also R.C. 2953.23(A) (“[A] court may not entertain a petition filed after the
expiration of the period prescribed in [R.C. 2953.21(A)]” unless one of the
exceptions set forth in R.C. 2953.23(A)(1) or (2) applies.).
The requirement that a petition for postconviction relief be timely
filed is jurisdictional. See, e.g., State v. Morton, 8th Dist. Cuyahoga No. 110946,
2022-Ohio-2358, ¶ 14 (”The timeliness requirement of R.C. 2953.21 is
jurisdictional.”); State v. Robinson, 8th Dist. Cuyahoga No. 109159, 2020-Ohio-
4470, ¶ 13; State v. Jackson, 8th Dist. Cuyahoga No. 100048, 2014-Ohio-1514, ¶ 19.
Therefore, a trial court lacks jurisdiction to entertain an untimely filed petition for
postconviction relief that does not meet the exceptions set forth in R.C. 2953.23(A).1
Morton at ¶ 14; State v. Medina, 8th Dist. Cuyahoga No. 110726, 2022-Ohio-1070,
¶ 11-14; State v. Kleyman, 8th Dist. Cuyahoga No. 93896, 2010-Ohio-3612, ¶ 35.
R.C. 2953.21(H) states that “[i]f the court does not find grounds for
granting relief, it shall make and file findings of fact and conclusions of law and shall
enter judgment denying relief on the petition.” See also R.C. 2953.21(D) (“If the
court dismisses the petition, it shall make and file findings of fact and conclusions
of law with respect to such dismissal.”). However, a trial court has “no legal duty”
1 Dudas does not contend that R.C. 2953.23(A)(1) or (2) applies. Accordingly, we
consider only whether Dudas’ petition was timely under R.C. 2953.21(A)(2)(a).
to issue findings of fact and conclusions of law when dismissing or denying an
untimely petition for postconviction relief. See State v. Atahiya, 8th Dist. Cuyahoga
No. 109726, 2021-Ohio-1488, ¶ 25; State ex rel. Harris v. Sutula, 8th Dist. Cuyahoga
No. 107662, 2018-Ohio-5045, ¶ 9, citing State ex rel. Kimbrough v. Greene, 98 Ohio
St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155, ¶ 6, and State ex rel. Dillon v. Cottrill,
145 Ohio St.3d 264, 2016-Ohio-626, 48 N.E.3d 552, ¶ 5; State ex rel. Hilliard v.
Russo, 8th Dist. Cuyahoga No. 103466, 2016-Ohio-594, ¶ 7.
Dudas asserts that because the transcript of the trial court
proceedings was filed on July 26, 2021 in his delayed appeal, he had 365 days from
that date to file his petition for postconviction relief and that his petition for
postconviction relief filed on July 14, 2022, was, therefore, timely. We disagree.
This court has held that where a defendant is granted leave to file a
delayed appeal, a petition for postconviction relief must be filed within “365 days
from the expiration of the time for filing a timely appeal.” State v. Watson, 8th Dist.
Cuyahoga No. 110161, 2021-Ohio-2773, ¶ 11. As this court explained in Watson:
This court has consistently held that the filing of a delayed appeal
does not toll the time requirement to file a petition for postconviction
relief. See, e.g., Hilliard, 8th Dist. Cuyahoga No. 103466, 2016-Ohio-
594, at ¶ 8; State v. Cobb, 8th Dist. Cuyahoga No. 80265, 2002-Ohio-
2138, ¶ 26; State v. Fields, 136 Ohio App.3d 393, 398, 736 N.E.2d 933
(8th Dist.1999). “Were we to accept the proposition that a delayed
appeal could stall the time limits contained in the statute, this would
have the net effect of providing no time limit at all for filing petitions.”
Fields at 398. “The language in the final sentence contained in R.C.
2953.21(A)(2) has been interpreted to include those delayed appeals
permitted pursuant to App.R. 5(A).” Cobb at ¶ 24 * * *.
In light of this precedent, we are constrained to conclude that,
because Watson did not timely file a direct appeal, his deadline to file a
petition for postconviction relief was 365 days from the expiration of
the time for filing a timely appeal. See R.C. 2953.21(A)(2)(a). As noted,
Watson’s direct appeal under App.R. 4 would have been due on July 17,
2019. Watson, therefore, had until July 16, 2020, to file his petition for
postconviction relief. He did not file his petition until November 12,
2020. Watson missed the deadline.
Watson at ¶ 10-11.
Pursuant to App.R. 4, an appellant generally has 30 days from the
final judgment to file an appeal. Here, final judgment was entered on January 19,
2021, making February 18, 2021 Dudas’ deadline to file a timely, direct appeal.
Dudas, therefore, had until February 18, 2022 to file his petition for postconviction
relief. But he did not file his petition until July 14, 2022. As such, Dudas’ petition
for postconviction relief was untimely.
Because Dudas’ petition was untimely, the trial court was not
required to make findings of fact and conclusions of law before denying his petition
for postconviction relief. Accordingly, we overrule Dudas’ first assignment of error.
Dudas’ second, third and fourth assignments of error, which address the merits of
Dudas’ petition for postconviction relief, are likewise overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR