State v. McDougaldState v. McDougald
Jerone McDougald, Orient, Ohio, Appellant, pro se.
Mark E. Kuhn, Scioto County Prosecutor, and Julie Cooke Hutchinson, Scioto County Assistant Prosecutor, Pоrtsmouth, Ohio, for Appellee.
Harsha, J.
{¶1} Jerone McDougald appeals the Scioto County Common Pleas Court’s judgment denying his petition for post-conviction relief. McDougald cоntends that the court erred in dismissing his petition because he suffered a violation of his Sixth Amendment right to confrontation when the trial court admitted a drug laboratory analysis report intо evidence over his objection. He contends the report was “testimonial,” so that under the Confrontation Clause he had a right to cross-examine the laboratory anаlyst who prepared it. In support of his untimely petition, McDougald argued that the United States Supreme Court had created a “newly Constitutional issue” that applied retroaсtively to him. However, the case upon which he relied for this proposition had not been decided by the Court – it was still pending when he filed his petition. Because McDougald’s pоst-conviction petition was untimely, and because he
I.
{¶2} Following a jury trial in 2007, McDougald was convicted of possession of drugs, trafficking in drugs, possession of criminal tools, and having a weapon while under disability. The trial court ordered McDougald to serve a total of twenty years in prison. In May 2007, McDougald filed a direct appeal. The triаl transcript was filed in this Court on July 3, 2007. We later affirmed his convictions. See State v. McDougald, Scioto App. No. 07CA3157, 2008-Ohio-1398.
{¶3} In December 2008, he filed a pro se petition for post-conviction relief under
FIRST ASSIGNMENT OF ERROR:
Defendant-Appellant Jerone McDougald [sic] Sixth Amendment right to confrontation was violated when the court аdmitted into evidence the drug laboratory analysis report from the Ohio Bureau of Criminal Investigation (B.C.I.), over objection without permitting him an opportunity to cross examine “the сhemist or technician who prepared it.”
II.
{¶5} Appellate courts use a de novo standard of review when reviewing a trial court’s dismissal or denial of a petition for post-conviction relief without a hearing.2 State v. Collins, Athens App. No. 06CA40, 2007-Ohio-3558, at ¶7. Thus, we will independently review the record, without deference to the trial court’s decision.
{¶6}
{¶7}
{¶8} McDougald’s post-conviction petition was clearly untimely, having been filed over seventeen months after the date on which the trial transcript was filed in his direct appeal in this Court. Because the petition was untimely, McDougald had to satisfy the criteria set forth in
{¶9} In support of his untimely petition, McDougald cited a case that was pending before the United States Supreme Court and argued that the case created a “newly Constitutional issue” that applied retroactively to him. Specifically, he relied on Melendez-Diaz v. Massachusetts (2008), 552 U.S. ___, 128 S.Ct. 1647, 170 L.Ed.2d 352. (See entry of March 17, 2008 granting writ of certiorari as case No. 07-0591). This case presented the question of “[w]hether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).” Id. However, while the Supreme Court has since issued a decision in this case, see Melendez-Diaz v. Massachusetts, 557
{¶10} Clearly McDougald’s post-conviction petition was premised on a case that the Supreme Court of the United States had yet to decide. Thus, McDougald failed to demonstrate to the trial court that the United States Supreme Court had in fact reсognized a new federal or state right that applied retroactively to him or that it did so after the 180-day time period expired. See
{¶11} Moreover, once we have determined that a petition is untimely, no further inquiry into the merits of the case is necessary. State v. Taylor, Highland App. No. 06CA20, 2007-Ohio-1185, at ¶10.
{¶12} Therefore, we overrule McDougald’s assignment of error.3
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days uрon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified cоpy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.