State v. LawsState v. Laws
OPINION
{¶ 1} Dеfendant-appellant, Gene Thomas Laws, appeals from a judgment of the Franklin County Court of Common Pleas dismissing defendant‘s petition for postconviction relief. Beсause the trial court lacked jurisdiction over defendant‘s petition for post-conviction relief, we affirm.
{¶ 2} On May 9, 1997, defendant was indicted for 12 counts of rape in violation of
{¶ 3} Defendant appealed to this court in case No. 98AP-306. The transcript was filed on January 28, 1998 and supplementеd with a videotape on June 30, 1998. On appeal we affirmed defendant‘s convictions, but remanded for resentencing; defendant was resentenced on June 4, 1999. Defendant appealed his sentence in case No. 99AP-778. Again, we remanded the case for resentencing, and defendant was resentenced on October 30, 2001. In the interim, on May 4, 2001, defendant filed a motion to stay or vacate the trial court‘s judgment, which the trial court denied. On April 1, 2002, defendant filed a petition for post-conviction relief pursuant to
First Assignment of Error:
The trial court erred to the substantial prejudice of the appellant where the trial court failed to review the merits of the conflict of interest сlaim and determined the appellant was provided effective assistance of counsel.
Second Assignment of Error
The trial court erred to the substantial prejudice of the appеllant when the trial court held that the petition for post-conviction relief was filed untimely and the appellant was not unavoidably prevented from discovering the faсts which were presented in the petition.
Third Assignment of Error
The trial court erred to the substantial prejudice of the appellant where that court based its judgment on an erroneous view of the law or established findings of fact that were made in the process of applying an improper legal standard.
{¶ 4} We first address defendant‘s second assignment of errоr, as it potentially is dispositive. In it, defendant contends the trial court erred in dismissing his petition for post-conviction relief as being untimely filed.
{¶ 5}
{¶ 6} While
{¶ 7} Accordingly, under the circumstances of this case, the time limits of
{¶ 8}
{¶ 9} Defendant maintains he unavoidably was prevented from discovering a transcript of a conversation betwеen his trial attorney, John Neal, and one of the juvenile victims, L.P. According to defendant, the transcript revealed that Neal spoke with L.P. regarding L.P.‘s allegations that defendant sexually abused him, and L.P. indicated to Neal he lied to Children‘s Services and the police detectives. Defendant asserts that because L.P.‘s father allegedly had forbidden Nеal from speaking with L.P., Neal, to protect himself from accusations of ethical impropriety, did not expose L.P.‘s confession of perjury during the trial. Defendant contеnds that Neal‘s interview with L.P., coupled with his subsequent offer to find or obtain a lawyer for L.P. because of L.P.‘s perjury, created a conflict of interest and deprived defendant оf his Sixth Amendment right to effective assistance of counsel.
{¶ 10} Contrary to defendant‘s assertions, the record demonstrates defendant was not unavoidably prevented from discovering the facts he seeks to rely upon in support of his petition. The affidavit of Irebelle Patterson, defendant‘s mother, states she went to Neal‘s office “in the weeks to come” after defendant‘s conviction to pick up his “complete file.” (Affidavit of Irebelle Patterson, ¶ 7.) Defendant‘s “complete” file thus was available a few wеeks after his conviction, and Patterson averred she discovered the transcript in March 2000. Id. at ¶ 8. Simply “[b]eing unaware of a fact does not establish that one was unavoidаbly prevented from discovering that fact in a timely manner.” State v. Carter, Clark App. No. 03CA-11, 2003-Ohio-4838, citing State v. Harris (Feb. 9, 2001), Montgomery App. No. 18525 (concluding defendant failed to explain why he could not have discovered the relevant facts in a timely mannеr other than he was “unaware“). Patterson‘s statement that she could not send him the complete file in prison is insufficient.
{¶ 11} In addition, defendant has failed to demonstrate that, but for сonstitutional error at trial, no reasonable juror would have found him guilty. Even if we assume, without deciding, that Neal had a conflict of interest that rendered him ineffective in reprеsenting defendant, the record does not demonstrate that defendant suffered any prejudice. Specifically, contrary to the suggestion in defendant‘s brief, L.P.‘s recantation was an issue at trial, and co-counsel thoroughly cross-examined L.P. on the issue. Defendant thus failed to demonstrate he was deprived of effective assistance of сounsel or that he suffered the requisite constitutional error but for which no reasonable juror would have convicted him of the alleged offenses. See Strickland v. Washington (1984), 466 U.S. 668, 686, 104 S.Ct. 2052 (concluding that tо demonstrate ineffective assistance of counsel, defendant must demonstrate not only deficient performance by counsel, but also prejudice defendant suffered as a result of counsel‘s deficient performance).
{¶ 12} Given that the provisions of
Judgment affirmed.
Klatt and McCormac, JJ., concur.
McCormac, J., retired, of the Tenth Appellate District, assigned to active duty under authority of Section 6(C), Article IV, Ohio Con