STATE OF OHIO v. REGINALD CLEMENT
No. 97930
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 23, 2012
2012-Ohio-3818
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-518986
Paul Mancino, Jr.
Cleveland OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
{¶1} Defendant-appellant Reginald Clement appeals from an order that denied his motion for leave to file a joint motion for a new trial and postconviction relief. The court held that neither motion was timely: Clement did not seek leave to file a motion for a new trial within 120 days from his conviction as required by Civ.R. 33, nor did he seek postconviction relief within 180 days after the transcript was filed in his direct appeal. The court also found that Clement failed to make any showing that he had been unavoidably prevented from filing either motion within the allotted time. Clement’s sole assignment of error contests the court’s ruling.
I
{¶2} In February 2010, a jury found Clement guilty of aggravated murder, murder, aggravated robbery, kidnapping, and having a weapon while under disability. We affirmed the conviction on direct appeal. See State v. Clement, 8th Dist. No. 94869, 2011-Ohio-1555. We likewise denied Clement’s motion to reopen his appeal. See State v. Clement, 8th Dist. No. 94869, 2011-Ohio-1555, reopening disallowed Motion No. 445587 (Feb. 12, 2012).
{¶3} On July 8, 2011, Clement filed a motion for leave to file a motion for a new trial or, in the alternative, a petition for postconviction relief. Both motions were premised on the affidavit of codefendant Demetrius Williams, who claimed that he had
II
{¶4}
{¶5} Clement’s motion for leave to file a motion for a new trial was concededly outside the 120-day window established by
{¶6} Clement maintains that the 120-day window for obtaining leave did not begin to run until he obtained the affidavit. This argument is meritless —
III
{¶7} A petition for postconviction relief that claims a violation of a constitutional right must be filed no later than 180 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.
{¶8} An exception to the time limit exists if (1) it can be shown both that petitioner was unavoidably prevented from discovering the facts relied on in the claim for relief or that 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; and (2) there is clear and convincing evidence that but for the constitutional
{¶9} The transcript in Clement’s direct appeal was filed on May 3, 2010. He filed the petition for postconviction relief on July 11, 2011. More than 180 days elapsed from the time his trial transcript was filed on direct appeal to the date of the petition for postconviction relief, so Clement’s motion needed to demonstrate that he was “unavoidably prevented from discovering the facts relied on in the claim for relief.”
{¶10} For the same reasons stated in our discussion of the motion for a new trial, the court did not err by finding that Clement failed to establish cause for filing his petition for postconviction relief outside the time limits established by
{¶11} Judgment affirmed.
It is ordered that appellee recover of appellant its 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.
The defendant’s conviction having been affirmed, any bail pending appeal is terminated.
Case remanded to the trial court for execution of sentence.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, A.J., and EILEEN A. GALLAGHER, J., CONCUR