State v. FraleyState v. Fraley
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2026-OHIO-1964
THE STATE OF OHIO, APPELLEE, v. FRALEY, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Fraley, Slip Opinion No. 2026-Ohio-1964.]
Criminal law—Postconviction relief—
(No. 2024-1038—Submitted June 25, 2025—Decided May 29, 2026.)
APPEAL from the Court of Appeals for Butler County, No. CA2023-12-125.
DETERS, J., authored the opinion of the court, which KENNEDY, C.J., and DEWINE, HAWKINS, and SHANAHAN, JJ., joined. FISCHER, J., concurred in judgment only, with an opinion. BRUNNER, J., dissented, with an opinion.
DETERS, J.
{¶ 1} A petition for postconviction relief under
{¶ 2} Trevor Fraley was convicted of numerous criminal offenses. His direct appeal of his convictions and sentence was dismissed because his appellate counsel failed to timely file a transcript of the trial-court proceedings with the Twelfth District Court of Appeals. State v. Fraley, No. CA2021-10-131 (12th Dist. Jan. 19, 2022). Three months later, Fraley filed the transcript in support of his
{¶ 3} Fraley asks us to reverse the court of appeals’ judgment affirming the dismissal of his postconviction petition. He argues that because his application to reopen was granted and his appeal was reopened under
BACKGROUND
{¶ 4} On October 12, 2021, Fraley pleaded guilty to 16 counts of pandering sexually oriented matter involving a minor in violation of
{¶ 5} Almost three months after his direct appeal was dismissed, on April 11, 2022, Fraley filed an application to reopen his appeal under
{¶ 6} Almost a year after he filed the transcript, on April 18, 2023, Fraley filed a petition for postconviction relief. The State of Ohio filed a motion to dismiss the petition as untimely because it had not been filed within 365 days after the expiration of Fraley’s time for filing a direct appeal as required by
{¶ 7} We accepted Fraley’s appeal on a single proposition of law:
Under the plain language of
R.C. 2953.21(A)(2)(a) , a petition for post-conviction relief following the “delayed re-opening of an appeal” within ninety (90) days of the appeal being dismissed for counsel’s failure to timely file a transcript of proceedings is timely when filed no later than three hundred and sixty-five days after the date in which the trial transcript is filed in the court of appeals.
See 2024-Ohio-4713.
{¶ 8} “[A] postconviction proceeding is a collateral civil attack on the judgment,” and “the ‘right to file a postconviction petition is a statutory right, not a constitutional right.’” State v. Apanovitch, 2018-Ohio-4744, ¶ 35, quoting State v. Broom, 2016-Ohio-1028, ¶ 28. Because the right to seek postconviction relief is statutory in nature, a petitioner receives “only those rights specifically enumerated in [
{¶ 9}
{¶ 10} Fraley argues that his postconviction petition was subject to the first deadline, with the count starting when he filed the transcript in support of his
{¶ 11} Fraley argues that because his case moved forward as on an initial appeal after the Twelfth District granted his application to reopen, the time to file his postconviction petition started on the date that he filed the transcript of the trial-court proceedings in support of his application, which was April 20, 2022. Thus, in Fraley’s view, his reopened appeal constituted a direct appeal, the first deadline prescribed in
{¶ 12} The State counters that under this court’s decision in Morgan, an application to reopen under
{¶ 13} In Morgan, this court considered two questions posed by a federal court. The first question asked whether an application to reopen an appeal under
{¶ 14} Regarding the first question, this court held that an
{¶ 15} This court further explained that jurisdictional rules apply differently to direct appeals and applications to reopen. “If a case is pending on appeal in this court, an Ohio court of appeals has no jurisdiction to alter or amend the judgment it previously rendered. In contrast, under our rules of jurisdiction, a court of appeals has the authority to consider an application under
{¶ 16} Another feature of a reopened appeal that resembles a collateral postconviction proceeding is that a court of appeals has the freedom to “‘limit its review to those assignments of error and arguments not previously considered,’” Morgan, 2004-Ohio-6110, at ¶ 17, quoting
{¶ 18} Fraley contends in his reply brief that this court’s refusal to reach the second question in Morgan leaves open the possibility that an
{¶ 19} This court’s decision in State v. Fuller, 2009-Ohio-722, further supports rejecting Fraley’s argument. In Fuller, the First District Court of Appeals had concluded that a transcript filed after an application to reopen was granted was filed in a direct appeal for purposes of
{¶ 20} What’s more, adopting Fraley’s argument would not help his cause. It is undisputed that he filed the transcript of the trial-court proceedings during the first stage of the
{¶ 21} Amicus curiae, the Office of the Ohio Public Defender, calls attention to a “gap” in
CONCLUSION
{¶ 22} Fraley’s sole challenge to the trial court’s conclusion that his postconviction petition was untimely is that his reopened appeal was part of his direct appeal and that he timely filed his petition within 365 days after the date on which he filed the transcript of the trial-court proceedings in support of his application to reopen his appeal. Because an application to reopen and a reopened appeal are not part of a direct appeal and Fraley’s sole challenge fails, we affirm the judgment of the Twelfth District Court of Appeals.
Judgment affirmed.
{¶ 23} A petition for postconviction relief under
{¶ 24} But the majority never analyzes what deadline does apply. It notes that appellee, the State of Ohio, argues that the second deadline prescribed in
{¶ 25} By its very language, the second deadline prescribed in
{¶ 26} But the majority fails to even address this issue. It calls the statute’s silence “about the filing deadline when a direct appeal is filed but a transcript is not” a “gap” in
{¶ 27} I believe that the majority opinion is deficient in its failure to determine what the deadline is for filing a postconviction petition in a case such as Fraley’s, and I would address that issue. I agree with the majority that a “petitioner receives ‘only those rights specifically enumerated in [
{¶ 28} Nevertheless, there must be a deadline for filing a postconviction petition. The time to invoke that right cannot be unlimited. In the absence of any clear directive in the statute, this court must determine which deadline the General Assembly intended to apply. See Symmes Twp. Bd. of Trustees v. Smyth, 2000-Ohio-470, ¶ 12, quoting Meeks v. Papadopulos, 62 Ohio St.2d 187, 190 (1980) (“‘Where a statute is found to be subject to various interpretations, however, a court
{¶ 29} The General Assembly has provided two deadlines for filing postconviction petitions: within 365 days after the date on which the trial transcript is filed in a defendant’s direct appeal or, if no appeal is taken, within 365 days after the expiration of the time for filing the direct appeal.
{¶ 30} The majority summarily rejects Fraley’s arguments and concludes that his petition was untimely without actually engaging in a proper analysis to determine what the deadline for filing a postconviction petition was in his case. Therefore, I concur in judgment only.
BRUNNER, J., dissenting.
{¶ 31} I respectfully dissent. In my view, the Twelfth District Court of Appeals erred when it held that appellant Trevor Fraley’s petition for postconviction relief was untimely. I would therefore reverse its judgment.
{¶ 33} To exercise this statutory right, a person must comply with the applicable filing deadline. Under
{¶ 34} Fraley was convicted of numerous criminal offenses in 2021, and in 2023, he sought to exercise the statutory right granted him by
{¶ 35} We agreed to review the Twelfth District’s judgment to consider how the filing-deadline provision,
- After Fraley was convicted, his judgment of conviction was filed October 18, 2021, and therefore, the filing deadline for him to pursue a direct appeal was November 17, 2021. See
App.R. 4(A)(1) . - Before that deadline passed, Fraley’s appellate counsel initiated a direct appeal. Fraley’s counsel subsequently failed to file a transcript of the trial-court proceedings by the deadline set by the Twelfth District, which led the Twelfth District to dismiss the appeal on January 19, 2022. See State v. Fraley, No. CA2021-10-131 (12th Dist. Jan. 19, 2022).
- On April 11, 2022, Fraley filed a timely application to reopen his appeal under
App.R. 26(B) . On April 20, he filed the transcript in support of his application. - The Twelfth District granted Fraley’s application, State v. Fraley, No. CA2021-10-131, 3 (12th Dist. May 4, 2022), and later affirmed his convictions and sentence, State v. Fraley, 2022-Ohio-3270, ¶ 31 (12th Dist.).
- Fraley filed his petition for postconviction relief on April 18, 2023.
Notably, the date on which Fraley filed his petition (April 18, 2023) was more than 365 days after the filing deadline for pursuing his direct appeal had expired (November 17, 2021) but within 365 days after he had filed the transcript in support of his application (April 20, 2022).
{¶ 36} The trial court dismissed Fraley’s petition for postconviction relief as untimely. Butler C.P. No. CR2019-11-1857, at 6 (Nov. 7, 2023). It reasoned that the portion of
{¶ 37} I would reverse the Twelfth District’s judgment affirming the trial court’s judgment dismissing Fraley’s petition for postconviction relief.
{¶ 38} Nonetheless, the inapplicability of these two deadlines does not establish that Fraley’s petition for postconviction relief was untimely. Instead, it means that, although Fraley has a statutory right to file his petition, the General Assembly has not identified any deadline for a person in his situation.
{¶ 39} The opinion concurring in judgment only concludes that this court should fill the gap by “determin[ing] which deadline the General Assembly intended to apply” to a person in Fraley’s situation. Opinion concurring in judgment only, ¶ 28. Though it vaguely suggests that it is interpreting text in the statute, see
{¶ 40} Both approaches are wrong.
{¶ 41} The opinion concurring in judgment only shows the folly of proceeding as a “telepathic time-traveler and collaborative lawmaker,” Scalia & Garner, Reading Law: The Interpretation of Legal Texts, 350 (2012). The opinion finds it “clear that the General Assembly intended the deadline to be based on the timing of a direct appeal.” Opinion concurring in judgment only at ¶ 29. That may be a fair conclusion with respect to the two situations the legislature addressed expressly in
{¶ 42} The majority opinion takes a different approach. It correctly holds that the first deadline in
{¶ 43} The best approach in this case is for the court to apply the omitted-case canon—the principle that “a matter not covered is to be treated as not covered” (boldface deleted), Scalia & Garner, Reading Law, at 93. As an example of this canon’s application, former Justice Scalia and Garner pointed to a decision from New York, People v. Boothe, 16 N.Y.3d 195 (2011), in stating:
[A] New York statute had provided criminal penalties for a person who committed a “fraudulent insurance act,” a term defined in the statute. The legislature later amended the statute to add a new defined term, “fraudulent healthcare insurance act,” but did not change the substantive part of the law to make that newly defined act unlawful. The chief operating officer of a managed-healthcare provider was charged with committing a “fraudulent healthcare insurance act”—which the prosecution argued was a subspecies of a fraudulent insurance act. The New York Court of Appeals rightly ordered the case dismissed. The legislature had failed to criminalize the defined conduct; if that omission was inadvertent, the remedy lay with the legislature.
(Footnotes omitted.) Scalia & Garner, Reading Law, at 97. The same result is appropriate here. Although it appears that the General Assembly mistakenly failed to provide a deadline for all circumstances in which a petition for postconviction relief may be filed, the remedy for that apparent mistake lies with the General Assembly. In the meantime, this court should apply the text enacted by the General Assembly—imperfect though it may be—and hold that the trial and appellate courts erred when they concluded that Fraley’s petition was untimely.
{¶ 44} I would therefore reverse the judgment of the Twelfth District Court of Appeals. Because the majority opinion concludes otherwise, I respectfully dissent.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant Prosecuting Attorney, for appellee.
Santen & Hughes, L.P.A., and H. Louis Sirkin, for appellant.