State v. EveretteState v. Everette
Rendered on the 18th day of June, 2010.
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MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
THOMAS E. EVERETTE, JR., #579590, Warren Correctional Institute, P. O. Box 120, Lebanon, Ohio 45036
Defendant-Appellant
JEREMY J. MASTERS, Office of the Ohio Public Defender, 250 E. Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Amicus Curiae, Ohio Public Defender
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FROELICH, J.
{¶ 1} Thomas E. Everette, Jr., appeals, pro se, from a judgment of the Montgomery
{¶ 2} Everette appeals from the dismissal of his petition for post-conviction relief. The Office of the Ohio Public Defender has submitted an amicus curiae brief in support of Everette‘s position. For the following reasons, the trial court‘s judgment will be affirmed.
I
{¶ 3} In June 2008, Everette was convicted after a jury trial of two counts of aggravated murder, aggravated robbery, and grand theft of a motor vehicle, all with firearm specifications. Everette was also convicted by the trial court of having a weapon while under disability. The charges stemmed from the shooting death of Phillip Cope on July 29, 2007, and the theft of Cope‘s vehicle. The two aggravated murder counts were merged, as were the firearm specifications; all of the charges were to be served concurrently to each other, and the three-year term for the firearm specification was to be consecutive and prior to this sentence as a matter of law. Everette was sentenced to an aggregate term of life imprisonment with the possibility of parole after 28 years.
{¶ 4} Everette appealed from his conviction on July 16, 2008. The same date, Everette‘s trial counsel requested that a transcript of the trial be prepared. On August 1, 2008, Everette‘s appellate counsel filed a “Praecipe/Instructions to Court Reporter” in this Court, requesting a transcript of a suppression hearing. On August 26, 2008, six videotapes – including the trial, the hearing on Everette‘s motion to suppress, and the sentencing hearing – were filed. A summary of docket was filed two days later and, the same day (August 28, 2008), the Clerk of Courts issued its
{¶ 5} On April 8, 2009, Everette submitted a petition for post-conviction relief. He claimed that his trial counsel had rendered ineffective assistance by failing to call a detective as a witness, to gather and present telephone records at trial, and to object to prosecutorial misconduct. Everette further argued that the prosecutor had engaged in misconduct by commenting on evidence that was not in the record during the State‘s rebuttal argument. Everette supported his petition with his own unsworn statement and indicated that he needed the transcripts to further support his claims.
{¶ 6} The State moved to dismiss Everette‘s petition or for summary judgment. It argued that Everette‘s petition was untimely because it was filed more than 180 days after the transcript of proceedings was filed on August 26, 2008. Alternatively, the State argued that Everette had not shown that there were substantive grounds for relief and that his petition should be summarily denied. The State argued that Everette did not explain how he was prejudiced by his counsel‘s failure to call a police detective as a witness and by failing to obtain telephone records. Further, the State asserted that Everette‘s claims of prosecutorial misconduct and his attorney‘s failure to object to such misconduct should be raised in Everette‘s direct appeal.
{¶ 7} Everette opposed the State‘s motion, arguing that his 180-day time limitation began to run on October 15, 2008, when the written transcripts were filed. He stated that his petition was due on April 13, 2009, not February 23, 2009, as the State asserted. He
{¶ 8} In July 2009, the trial court dismissed Everette‘s petition. The court held that the petition was untimely under
{¶ 9} We affirmed Everette‘s conviction in his direct appeal on October 30, 2009. State v. Everette, Montgomery App. No. 22838, 2009-Ohio-5738.
{¶ 10} Everette appeals from the dismissal of his petition for post-conviction relief, raising two assignments of error.
II
{¶ 11} Everette‘s first assignment of error states:
{¶ 12} “THE TRIAL COURT ERRED IN ITS DECISION DENYING APPELLANT[‘]S PETITION FOR POST CONVICTION RELIEF.”
{¶ 13} In his first assignment of error, Everette claims that the trial court erred in dismissing his petition as untimely. He argues that the time for filing his petition began to run on October 15, 2008, when the written transcripts were filed. Everette cites two cases from this appellate district – State v. Carson, Montgomery App. No. 22654, 2009-Ohio-1406, and State v. Jamison, Montgomery App. No. 22806, 2009-Ohio-3515 – to support his contention that the 180-day period begins to run when written transcripts are
{¶ 14}
{¶ 15} If a defendant has filed a direct appeal of his or her conviction, a petition for post-conviction relief must be filed no later than 180 days after the “trial transcript” is filed in the court of appeals in the direct appeal.
{¶ 16} Pursuant to
{¶ 18}
{¶ 19} “The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. A videotape recording2 of the proceedings constitutes the transcript of proceedings other than hereinafter provided, and, for purposes of filing, need not be transcribed into written form. Proceedings recorded by means other than videotape must be transcribed into written form. When the written form is certified by the reporter in accordance with App. R.
9(B), such written form shall then constitute the transcript of proceedings. When the transcript of proceedings is in the videotape medium, counsel shall type or print those portions of such transcript necessary for the court to determine the questions presented, certify their accuracy, and append such copy of the portions of the transcripts to their briefs.
{¶ 20} “In all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means.” (Footnote added.)
{¶ 21} In its amicus curiae brief, the Ohio Public Defender asserts that
{¶ 22} However, the second sentence of
{¶ 23} In contrast, proceedings recorded by means other than videotape must be reduced to written form. The sentence following the requirement for non-videotaped proceedings (i.e., the sentence upon which the Ohio Public Defender primarily relies) then
{¶ 24} Although the burden to produce the necessary written transcripts of videotaped proceedings falls on counsel, most written transcripts are produced, upon counsel‘s request, by a court reporter or other professional transcriptionist and not by counsel himself or herself. The mere fact that a court reporter or transcriptionist, at counsel‘s request, has produced a written transcript of a videotaped proceeding and has certified its accuracy, as required by
{¶ 25} Turning to when the “trial transcript” was filed in Everette‘s case, a summary of the relevant dates in Everette‘s case is useful to our discussion:
| June 18, 2008 | Guilty verdict |
| July 16, 2008 | Notice of appeal and praecipe for transcript |
| August 26, 2008 | Videotapes of trial filed |
| August 28, 2008 | |
| October 15, 2008 | Written transcripts filed |
| April 8, 2009 | Petition for post-conviction relief filed |
| October 30, 2009 | Direct appeal decided |
{¶ 26} In Everette‘s case, the videotaped proceedings were filed on August 26, 2008.
{¶ 27} Everette and the Ohio Public Defender cite to Jamison and Carson as examples of cases in which we referred to the date when the written transcripts were filed as opposed to the filing of the videotaped recordings. We acknowledge that we have, on occasion (including in Jamison and Carson), cited to the date that the written transcripts were filed as the date from which we determined whether a petition was untimely under
{¶ 28} In Jamison, we noted that Jamison‘s petition was filed 182 days after the filing of the written transcript; however, because Jamison‘s petition was barred by res judicata, we did not reach the timeliness of his petition. Accordingly, we had no need to discuss – and did not discuss – whether Jamison‘s time began to run with the filing of the written transcript or the unmentioned previously-filed videotaped transcript.
{¶ 29} However, in State v. Carver, Montgomery App. No. 22407, 2008-Ohio-5516,
{¶ 30} Finally, the Ohio Public Defender asserts that the videotaped recordings are not the transcript of proceedings, because the videotapes were certified as “a correct and complete mechanically reproduced transcript” by the trial court‘s judicial assistant, not by a court reporter.
{¶ 31}
{¶ 32} In many courtrooms, audio and/or video recording devices have replaced traditional stenographic reporters. Where trial court proceedings are memorialized solely through video recording devices, it is not uncommon for judicial assistants to be responsible for maintaining, copying, and filing the electronic media for the trial court. Stated differently, the judicial assistant is the “reporter” who certifies the accuracy of the electronically-recorded transcript and files it. In such situations, written transcripts can be prepared by private transcriptionists, whether arranged by counsel directly or through the court, as well as by a “court reporter” on the court‘s staff.
{¶ 34} Because Everette‘s time for filing his petition for post-conviction relief began on August 26, 2008, Everette‘s petition for post-conviction was untimely filed. The trial court did not err in dismissing his petition.
{¶ 35} The assignment of error is overruled.
III
{¶ 36} Everette‘s second assignment of error states:
{¶ 37} “APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE U.S. CONSTITTUTION [sic]”
{¶ 38} In light of our disposition of Everette‘s first assignment of error, his second assignment of error is overruled as moot.
IV
{¶ 39} The judgment of the trial court will be affirmed.
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FAIN, J. and DONOFRIO, J., concur.
(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Michele D. Phipps
Thomas E. Everette, Jr.
Jeremy J. Masters
Hon. Michael L. Tucker