State v. JamesState v. James
Rendered on December 15, 2011
Ron O‘Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.
Loretta A. Riddle, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
BRYANT, P.J.
{¶1} Defendant-appellant, Keith A. James, appeals from a judgment of the Franklin County Court of Common Pleas denying as untimely his petition for post-conviction relief under
{¶2} By indictment filed September 30, 2008, defendant was charged with two counts of trafficking in marijuana in violation of
{¶3} Police obtained a search warrant for the crate, opened it, and found four smaller boxes that contained approximately 300 pounds of marijuana. With that information, the officers scheduled a controlled delivery for the next day, June 30, 2008. A task force surveillance before and during the delivery revealed that defendant, Darryl Wood, and a third individual were walking around the premises. All three assisted in unloading and placing the crate on its arrival; Wood signed for the shipment using the name “Will Phillips.” When an alarm placed in the crate went off on opening, the officers entered the building and arrested аll three individuals.
{¶4} On the day defendant‘s trial was scheduled to begin, defendant filed a motion in limine that requested the court to exclude both “any mention of the death of Darryl Wood” as well as “testimony or the admission of the Dominiоn Freight Line receipt dated 6/17/08.” The motion explained that Wood was murdered on December 9, 2008 during the pendency of defendant‘s case. Defendant argued Wood‘s murder “is a separate crime and is not evidence having any tendency to make the existence of any
{¶5} Dеfendant‘s trial concluded with a verdict of guilty on March 6, 2010 to Count 1 of the indictment and to Count 2 of the indictment, amended to possession of marijuana in violation of
{¶6} Defendant appealed from the trial court‘s judgment, filing a transcript of the proceedings on May 29, 2009. Defendant assigned three errors: (1) the trial court erred, after granting the motion in limine, in reserving ruling on the duplicate document obtained from the freight company, (2) counsel rendered ineffеctive assistance in failing to object to the introduction of a text message and the publication of the delivery document, and (3) prosecutorial misconduct denied defendant a fair trial. In a decision issued on December 1, 2009, this court overruled each of the assigned errors and affirmed the judgment of the trial court. State v. James, 10th Dist. No. 09AP-368, 2009-Ohio-6274. On March 10, 2010, the Supreme Court denied defendant leave to appeal and dismissed his appeal. State v. James, 124 Ohio St.3d 1510, 2010-Ohio-799.
{¶7} On May 18, 2010, defеndant filed a petition for post-conviction relief pursuant to
{¶8} In resolving the petition, the trial court initially noted the petition was not timely under
II. Assignments of Error
{¶9} Defendant appeals, assigning three errors:
Assignment of Error No. I
WHEN THE STATE OF OHIO VIOLATES A DEFENDANT‘S DUE PROCESS RIGHTS AND FAILS TO COMPLY WITH DISCOVERY BY WITHHOLDING EVIDENCE IN VIOLATION OF CRIM. R. 16 AND BRADY THE STATE OF OHIO WAIVES AND FORFEITS ANY TIME BARRIERS TO POST CONVICTION RELIEF UNDER
Assignment of Error No. II
KEITH JAMES MET HIS BURDEN IN ESTABLISHING NEWLY DISCOVERED EVIDENCE WHEN HE SUPPLIES [sic] SUFFICIENT INFORMATION ESTABLISHING THAT THE STATE OF OHIO WITHHELD EVIDENCE THAT A CO-OPERATING CO-DEFENDANT HAD “THREE BALES OF MARIJUANA” WHEN KEITH JAMES’ THEORY OF THE CASE WAS THAT THE CO-DEFENDANT WAS THE OWN-
Assignment of Error No. III
THE TRIAL COURT ERRED BY NOT GRANTING JAMES’ PETITION GRANTING RELIEF [sic] IN LIGHT OF STATE V. SMITH.
Although defendant‘s arguments on appeal raise several issues, his petition fails for at least one reason: the petition is untimely.
III. Applicable Law
{¶10} A petition for post-conviction relief is a collateral civil attack on a criminal judgment, not an appeal of the judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111. “It is a means to reach constitutional issues which would otherwise be impоssible to reach because the evidence supporting those issues is not contained in the record.” State v. Murphy (Dec. 26, 2000), 10th Dist. No. 00AP-233, discretionary appeal not allowed (2001), 92 Ohio St.3d 1441.
{¶11} Effective September 21, 1995,
{¶12} Pursuant to
IV. Timeliness of Defendant‘s Petition under R.C. 2953.21 and 2953.23
A. Brady v. Maryland
{¶13} Defendant initially contеnds the trial court erred in finding defendant‘s petition untimely, as the state violated the principles in Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194 and thus waived or forfeited the time restrictions set forth in
{¶15} Moreover, the legislature specified the terms on which a defendant may exceed the 180-day time limit set forth in
R.C. 2953.23 - The Exceptions
{¶16} Although defendant devotes much of his appellate brief to arguing a Brady violation, the issue is not whether the state violated Brady, but whether defendant falls within either of the two exceptions set forth in
1. First Exception - Prevented from Discovering the Evidence
{¶17} Defendant first contends he was unavoidably prevented from discovering the evidence he contends would have changed the outcome of the trial. According to defendant, had he known of the considerable amount of marijuana discovered in Wood‘s hоme at the time of his death, defendant would have been able to convince the jury that Wood, not defendant, was both the drug dealer and the party responsible for the incident giving rise to defendant‘s conviction.
{¶18} Defеndant, however, knew of Wood‘s death before trial and filed a motion in limine to prevent evidence of the murder from being presented to the jury. Nonetheless, even if we assume, without deciding, that defendant could not have discovered the evidence unless the prosecution so informed him, he also must demonstrate that, had he been given the evidence, no reasonable fact finder would have found him guilty of the offenses with which he wаs charged.
{¶19} Defendant cannot meet his burden, as other evidence in the record revealed defendant‘s involvement, including evidence of defendant‘s involvement in
2. Second Exception—United States Supreme Court case
{¶20} Defendant next relies on the Ohio Supreme Court‘s decision in State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, cert. denied, 131 S.Ct. 102, to support his contention that the United States Supreme Court recognized a new federal or state right that applies retroactively and allows him to file outside the 180-day time limit set forth in
V. Disposition
{¶22} Having overruled all three of defendant‘s assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
KLATT and SADLER, JJ., concur.
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