{¶ 2} Martin advances two assignments of errоr on appeal. First, he contends the trial court erred in finding his petition untimely. Second, he claims the trial court erred in denying him an evidentiary hearing on the petition.
{¶ 3} The rеcord reflects that Martin was convicted of aggravated murder and numerous other crimes in December, 2000. The trial court imposed an aggregate sentence of life in prison plus fifty-five years and designated him a sexual predator. Martin subsequently appealed, and in December, 2001, we remanded for re-sentencing. The trial court then re-imposed an identical sentence. Thereafter, Martin filed his petition for post-conviction relief on June 16, 2003, arguing that his trial counsel provided constitutionally inеffective assistance by failing to call certain alibi witnesses. Martin admittedly filed the petition beyond the time authorized by R.C. §
{¶ 4} In his first assignment of error, Martin contends the petition was not time barred because he satisfied R.C. §
{¶ 5} "(A) Whether a heаring is or is not held on a petition filed pursuant to section
{¶ 6} "(1) Either of the following applies:
{¶ 7} "(a) 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.
{¶ 8} "(b) Subsequent to the period prescribed in division (A)(2) of section
{¶ 9} "(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentencе of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentencе."
{¶ 10} In the present case, Martin's post-conviction claim is that his trial counsel unreasonably failed to call alibi witnesses who would have testified that he was with them when the сrimes were committed. Although Martin obviously knew of the alibi and the identify of the individuals who would have supported it, he nevertheless argues that he could not have raised the issue in a timely post-conviction petition. According to Martin, he was unavoidably prevented from discovering the facts upon which this claim depends because he lost contact with the alibi witnesses immediately after his conviction. Martin insists that he diligently tried to locate the witnesses but could not do so. He contends they eventually contаcted him in prison, providing affidavits to substantiate his claim, and he filed his petition promptly thereafter. Finally, Martin insists that his own affidavit (which includes the foregoing factual allegаtions) and the affidavits of the alibi witnesses constitute clear and convincing evidence that the jury would not have convicted him but for his attorney's failure to call the witnesses at trial. As a result, Martin asserts that he has satisfied both of the requirements set forth in R.C. §
{¶ 11} In its ruling, the trial court rejected Martin's argument that he was unavoidably prevented from discovering thе facts upon which his claim depends, reasoning as follows:
{¶ 12} "Defendant seeks to raise the ineffectiveness of his trial counsel in his petition for post-conviction relief. However, Defendant Charles Martin admits in his affidavit that he requested `trial counsel to call several alibi witnesses who would have testified to my whereabouts during the time that these crimes were committed.' Martin Affidavit, ¶ 2. It is clear that defendant was not unavoidably prevented from discovering the facts upon which his petition is based. Specifically, Defendant was immediately aware of the alleged ineffective counsel at the time of trial. `Based on R.C. §
{¶ 13} "Defendant also relies on affidavits that purportedly establish an alibi for Defendant's whereabouts during the time of the crimе. Again, the facts contained in the affidavits were known to the defendant at the time of trial. Accordingly, Martin was not unavoidably prevented from discovering the facts of his аlleged alibi. If a defendant is not unavoidably prevented from discovering facts relating to a claim of ineffective assistance of counsel based on a failure to present a possible defense, then the defendant fails to satisfy R.C. §
{¶ 14} "Because defendant fails to satisfy R.C. §
{¶ 15} Upon review, we disagree with the trial cоurt's conclusion that Martin failed to satisfy R.C. §
{¶ 16} Thus, we conclude that Martin was unavoidably prevented from discovering the facts upon which his claim relies, within the meaning of R.C. §
{¶ 17} In his second assignment of error, Martin contends the trial court erred in failing to hold an evidentiary hearing on his post-convictiоn relief petition. Upon review, we conclude that this issue is not properly before us. As noted above, the trial court dismissed Martin's petition as untimely solely based on his failure to satisfy R.C. §
{¶ 18} Based on the reasoning and citation of authority set forth above, the judgment of the Montgomery County Common Pleas Court is hereby reversed, and this cause is remanded for further proceedings consistent with this opinion.
{¶ 19} Judgment reversed and cause remanded.
GRADY, J., and YOUNG, J., concur.