State of Ohio, Plaintiff-Appellee, v. Geoffrey A. Davis, Defendant-Appellant.
Case No. 10CA25
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
RELEASED 03/28/11
2011-Ohio-1706
Harsha, P.J.
DECISION AND JUDGMENT ENTRY
Geoffrey A. Davis, Noble Correctional Institution, Caldwell, Ohio, pro se.
James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn, Washington County Assistant Prosecutor, Marietta, Ohio, for appellee.
Harsha, P.J.
{¶1} Geoffrey Davis appeals from the dismissal of his untimely petition for postconviction relief. We agree with the trial court that Davis filed it well beyond the statutory 180-day time limit and did not demonstrate grounds for filing a delayed petition. Thus, we affirm the judgment of dismissal.
I. Case Summary
{¶2} In 2005, a Washington County jury found Davis guilty of felonious assault and abduction. In November of 2005, Davis appealed and we remanded the case to the trial court for resentencing in light of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. See State v. Davis, Washington App. 05CA50, 2006-Ohio-3549. Davis then appealed from the resentencing and we affirmed the trial court. See State v. Davis, Washington App. No. 06CA39, 2007-Ohio-1281. Davis subsequently filed a motion for a new sentencing hearing when he realized the court failed to notify him of a
{¶3} In the meantime, in January 2010, Davis filed a petition with the trial court seeking postconviction relief. That petition, which is the subject of this appeal, included sundry documents that Davis argued created “reasonable doubt” as to his conviction. In denying the petition, the trial court offered several reasons it could have denied the petition, including the doctrine of res judicata. Additionally, the court individually reviewed each attached document and explained why the document did not support Davis’ demand for postconviction relief. Ultimately, the trial court expressly rejected Davis’ petition on grounds of untimeliness. Davis subsequently filed a pro se appeal of this decision.
II. Assignments of Error
{¶4} Davis assigns three errors, which we have reproduced verbatim from his brief:
First Assignment of Error:
TRIAL COURT ABUSED THEIR DISCRETION BY DENYING POST BASED ON THE ASSUMPTION AND NO FACTUAL DETERMINATION THAT THE EVIDENCE “COULD HAVE” BEEN BROUGHT TO TRIAL COURTS ATTENTION PRIOR TO TRIAL AND THAT DEFENDANT “COULD HAVE” TESTIFIED TO THIS AT TRIAL.
Second Assignment of Error:
Third Assignment of Error:
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO, OR (“COULD HAVE“) RAISED THE EVIDENCE NOW SUBMITTED TO TRIAL COURTS ATTENTION, WHICH COULD HAVE LED TO A DIFFERENT OUTCOME.
III. Untimeliness of Demand for Postconviction Relief
{¶5} The trial court specifically denied Davis’ petition for postconviction relief as being untimely. Although not raised as an assignment of error, in the section of his brief titled “History of Facts/Case” Davis argues the petition was timely. Even though this approach does not satisfy the appellate rules, we will review the trial court‘s decision on timeliness because it is dispositive.
{¶6} Postconviction relief is a narrow remedy reserved for addressing errors of constitutional dimension that occurred outside the trial record. State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639 N.E.2d 67. Unlike a direct appeal, a petitioner has no constitutional right to postconviction relief. Id. The petitioner seeking postconviction relief has no more rights than those granted within the statute. State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-102, 714 N.E.2d 905.
{¶7}
{¶8} Davis briefly argues that his petition was timely because the court‘s act of resentencing him reset the 180-day time limit. However, Ohio courts are unanimous in concluding that the time limit for filing a petition for postconviction relief runs from the original appeal of the conviction. State v. Piesciuk, Butler App. No. CA2009-10-251, 2010-Ohio-3136, at ¶12; State v. Seals, Cuyahoga App. No. 93198, 2010-Ohio-1980, at ¶7; State v. Haschenburger, Mahoning App. No. 08-MA-223, 2009-Ohio-6527, at ¶27. “To hold otherwise would extend [the time to file] ‘well beyond the time limits set forth in
{¶9} The time limitation prescribed in
{¶10} Davis did not explain in his petition what unavoidably prevented him from discovering any of his supporting documents prior to the expiration of the 180-day time limit. In the argument for his second assignment of error, Davis claims that one piece of evidence -- a document listing the purported criminal history of the victim in the case -- demonstrates “reasonable doubt” as to his conviction. Concerning the availability of this document, he contends, “I had no access to it or any other evidence until after my original sentence * * *.” Notably, Davis contends only that he had no access to the document until after his original sentence, rather than after the expiration of the 180-day time limit.
{¶11} Regardless, the new evidence Davis refers to is titled “Criminal History of Denise A. Fought.” It is partially typewritten and handwritten. The typewritten portion contains a brief summary of a 1996 conviction for DUI in Florida and a 1996 conviction for possession of marijuana in South Carolina. The document also lists a charge of “Knowingly Give False Information to Police Officer” in South Carolina. There is no other information listed in the document for this alleged crime and no indication of a
{¶12} Even if Davis had presented some argument about what unavoidably prevented him from obtaining this document prior to the expiration of the 180-day time limit, the document itself relates solely to alleged convictions or charged crimes that occurred years before the 2005 trial in this matter. We fail to see what prevented Davis from obtaining this “evidence” prior to trial or shortly afterwards. Moreover, Davis fails to explain how this evidence would have resulted in his acquittal, other than the conclusory statement that it would have created “reasonable doubt.” Consequently, Davis has not demonstrated grounds for filing an untimely petition under
IV. Conclusion
{¶13} Because Davis’ petition for postconviction relief was untimely and he did not satisfy the requirements for filing a delayed petition, the court lacked jurisdiction to review it. Accordingly, we affirm the dismissal of his petition.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: _______________________________
William H. Harsha, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.