STATE OF OHIO v. DAVID A. GARCIA
CASE NO. CA2013-02-025
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/26/2013
[Cite as State v. Garcia, 2013-Ohio-3677.]
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR07-06-0912
David A. Garcia, #A568-239, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601, defendant-appellant, pro se
RINGLAND, J.
{1} Defendant-appellant, David A. Garcia, appeals the decision of the Butler County Court of Common Pleas denying his successive petition for postconviction relief.
{2} On December 13, 2007, Garcia was convicted of possession of marijuana, a second-degree felony, and trafficking in marijuana, a first-degree felony. Garcia was sentenced to serve eight years in prison for the possession conviction, to be served
{3} While Garcia‘s direct appeal was pending, he filed a petition for postconviction relief on May 14, 2008. The trial court denied Garcia‘s petition, and this court dismissed the subsequent appeal because it was not filed in a timely manner. State v. Garcia, 12th Dist. Butler No. CA2008-09-236 (Feb. 24, 2009) (Dismissal Entry).
{4} On December 4, 2008, Garcia filed a successive petition for postconviction relief. The trial court again denied Garcia‘s petition. On appeal, this court overruled Garcia‘s assignment of error and affirmed the trial court‘s denial of the successive petition for postconviction relief as untimely. State v. Garcia, 12th Dist. Butler No. CA2009-01-021 (Oct. 13, 2009) (Accelerated Calendar Judgment Entry).
{5} While that appeal was pending, Garcia filed a writ of procedendo on March 13, 2009, demanding an order for the lower court to issue findings of fact and conclusions of law with regard to his first petition for postconviction relief. This court dismissed the writ as moot because the lower court had filed findings of fact and conclusions of law on April 14, 2009. Garcia v. Butler Cty. Ct. of Common Pleas, 12th Dist. Butler No. CA2009-03-096 (May 12, 2009) (Dismissal Entry). Those findings of fact and conclusions of law stated that:
The Petitioner could have raised all of the claims he presents in his post-conviction petition on direct appeal, and he has presented no material, relevant nor competent evidence outside the record, res judicata bars his claims. Whether it be a claim of ineffective assistance of counsel or the legality of the search,
these issues could have been asserted in the proper court at the appropriate time. A Motion to Suppress was heard in this matter and was denied by the reviewing court.
{6} Garcia then appealed the trial court‘s findings of fact and conclusions of law denying his petition for postconviction relief. This court overruled his assignment of error, holding that “his claim of ineffective assistance of counsel could have been raised upon direct appeal, and therefore, is now barred by the doctrine of res judicata.” State v. Garcia, 12th Dist. Butler No. CA2009-04-118 (Nov. 23, 2009) (Accelerated Calendar Judgment Entry).
{7} On December 20, 2012, Garcia filed a second successive petition for postconviction relief. He argued that new evidence in the form of interrogatories received from his federal civil case prove that his trial counsel failed to adequately attack the validity of the search warrant in the motion to suppress hearing. The trial court denied Garcia‘s petition, finding that “[a] review of the record and
{8} Garcia now appeals from that decision, raising a single assignment of error for our review:
{9} Assignment of Error No. 1:
{10} TRIAL COUNSEL VIOLATED [GARCIA‘S] 6TH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE BY FAILING TO COMPLETELY LITIGATE [GARCIA‘S] 4TH AMENDMENT CLAIM.
{11} Within his first assignment of error, Garcia challenges the finding that his petition was untimely and that no exception listed in
{12} Pursuant to
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period described in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, 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.
(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact-finder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable fact-finder would have found the petitioner eligible for the death sentence.
{13} Garcia does not dispute that his second petition was filed outside the 180-day statutory period. However, he claims that he established the requirements of
{14} Garcia asserts that his ineffective assistance of counsel claim is based upon new evidence contained in the interrogatories of Officer Joseph Nerlinger. However, after a thorough review of the record, we cannot find that any evidence contained in Officer Nerlinger‘s more recent interrogatories presents new evidence. In fact, Garcia already made these same arguments in relation to Officer Nerlinger and the validity of the search warrant in
{15} In light of the foregoing, having found that Garcia has not presented any new evidence that would allow the trial court to entertain his untimely petition for postconviction relief, Garcia‘s sole assignment of error is overruled.
{16} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.