STATE OF OHIO v. RONALD L. PARKER III
C.A. CASE NO. 25518
T.C. NO. 05CR5301
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
July 19, 2013
2013-Ohio-3177
(Criminal appeal from Common Pleas Court)
RONALD PARKER III, #518-328, Madison Correctional Institute, P. O. Box 740, London, Ohio 43140 Defendant-Appellant
OPINION
DONOVAN, J.
{¶ 1} Defendant-appellant Ronald L. Parker III, acting pro sе, appeals a decision of the Montgomery County Court of Common Pleas dismissing his motion for leave to file a
{¶ 2} On December 30, 2005, Parker was indicted by a Montgomery County grаnd jury for one count of felonious assault and one count of kidnaping. After a bench trial, Parker was convicted on both counts. The trial court sentenced him to seven years on each count and ordered that the sentences be served consecutively for an aggregate total of 14 years imprisonment. Parker appealed his conviction and sentence to this Court. We affirmed his conviction and sentence in State v. Parker, 2d Dist. Montgomery No. 21599, 2007-Ohio-1512 (hereinafter “Parker I“).
{¶ 3} On July 31, 2007, Pаrker filed a motion for leave to file a delayed motion for new trial with the trial court. In the motion, Parker claimed that the State‘s key witness, Amber Wilt, recanted her trial testimony. In an affidavit attached to Parker‘s motion for leave to file a delayed motion for new trial, Wilt partially recanted her trial testimony against Parker. Specifically, Wilt claimed that she did not know who struck her, and that the State essentially coerced her into testifying against Parker. The trial court overruled Parker‘s motion in a judgment entry filed on August 20, 2007. Parker appealed the trial court‘s decision. We affirmed the decision of the trial court, finding that Parker was not unavoidably delаyed from discovering the partial recantation by Wilt. State v. Parker, 178 Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d (2d Dist.) (hereinafter “Parker II“).
{¶ 4} Thereafter, Parker filed a petition for post-conviction relief on June 18,
{¶ 5} On August 8, 2012, Parker filed a motion for leave to file a delayed petition for post-cоnviction relief. Attached to Parker‘s motion were the affidavits of Amber Wilt and Brandy Matheny, in which both women recant their testimony against Parker and claim that they only testified against him in order to eliminate drug debts they owed to him. The State filed a motion to dismiss Parker‘s motion on September 6, 2012. On October 24, 2012, the trial court dismissed Parker‘s motion as untimely and successive pursuant to
{¶ 6} It is from this judgment that Parker now appeals.
{¶ 7} Both of Parker‘s assignments of error being interrelated, they will be discussed together as follows:
{¶ 8} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT-DEFENDANT POST-CONVICTION RELIEF STATING HE DID NOT FULFILL THE OBLIGATIONS OF
{¶ 9} “THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING.”
{¶ 10} In his first assignment, Parker contends that the trial court erred when it
{¶ 11} Initially, we note that we have already considered Wilt‘s affidavit submitted by Parker in Parker II. Specifically, we found that Parker was not unavoidably delayed from discovering the partial recantation by Wilt and affirmed the decision of the trial court overruling his motion for leave to file a delayed motion for new trial. In Parker II, we stated as follows:
After a thorough review of the record, we hold that Parker‘s conclusory statement that he was unavoidably delayed to be insufficient to demonstrate clearly and convincingly that he could not have discovered this “new” evidence with due diligence. In particular, the affidavit submitted by Parker fails to explain how Wilt‘s partial recantation came to light or why there was such a long delay in obtaining it. Parker argues thаt the delay was caused by the fact that both he and Wilt are currently serving terms of imprisonment in Ohio. The mere fact of Parker‘s and/or Wilt‘s incarceration does not amount
to clear and convincing evidence that he was unavoidably prevented from discovering the evidence within the time limit. State v. Smith (March 27, 1998), Miami App. No. 97-CA-46, 1998 WL 404458. Without more, the trial court properly denied Parker‘s request for a hearing to present his “new” evidence.
Parker II, 178 Ohio App.3d 574, 577-578, at ¶ 21.
{¶ 12} Further, we found that the information in Wilt‘s affidavit amounted to only a partial recantation of her trial testimony:
Specifically, Wilt avers that she was “not entirely truthful” when she testified against Parker. She additionally avers that although she does not know who struck her in thе head, she is sure that it was not Parker. At best, these statements merely render Wilt‘s trial testimony suspect. The averments, however, do not completely undermine Wilt‘s testimony to the extent that they represent a complete recantation of said testimony, nor do they exculpate Parker.
Parker II, 178 Ohio App.3d 574, 578, at ¶ 22.
{¶ 13} Lastly, we noted that Parker extensively cross-examined Wilt during trial, and therefore had ample opportunity to discover whether she was coerced by the State into falsely implicating him as her assailant. We found there was no reason that Parker could not have attempted to impeach Wilt‘s testimony and credibility on this point at trial. Thus, Wilt‘s affidavit failed to establish by clear and convincing evidence that Parker was unavoidably prevented from discovering the new evidence he relied upon in his motion for
{¶ 14} As previously stated, Parker does not dispute that his motion was not filed in a timely manner pursuant to
Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty [180] days after the date on which the trial transcript is filed in the court of appeals in the direct appеal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. ***
{¶ 15}
a. either the petitioner shows that he 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 prescribed in [
R.C. § 2953.21(A)(2) ] or to the filing of an earlier petition, the United States Supreme 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; and
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 ***.
{¶ 16} A trial court lacks jurisdiction to hear an untimely filed petition for post-conviction relief if the two conditions оf
{¶ 17} Upon review, we reject Brandy Matheny‘s affidavit for essentially the same reasons as we rejected Wilt‘s affidavit in Parker II. Matheny‘s affidavit fails to establish how Parker was unavoidably prevented from discovering her recantation because it does not explain how the information came to light and/or why there was such a long delay in obtaining it. Parker II, 178 Ohio App.3d 574, 577-578, at ¶ 21. The only explanation provided by Parker regarding why he was prevented from discovering Matheny‘s “false” testimony is that he has been incarcerated since early 2006 and has had no contact with her. The mere fact of Parker‘s incarceration does not amount to clear and convincing evidence that he was unavoidably prevented from discovering the evidence within the time limit. Id.; see also State v. Smith, 2d Dist. Miami No. 97-CA-46, 1998 WL 404458 (March 27, 1998). Without more, the trial court properly denied Parker‘s request for a hearing to present his “new” evidence.
{¶ 18} Moreover, Parker had the opportunity to cross-examine Matheny at trial. If
{¶ 19} Significantly, we note that in her affidavit, Matheny does not claim that the prosecutor was aware that she allegedly testified falsely at trial. Evidence of perjury, without proof of knowledge on the part of the prosecution of that perjury, does not implicate constitutional rights and therefore, does not support a petition for post-conviction relief. State v. Clark, 2d Dist. Montgomery No. 16463, 1998 WL 271853 (May 29, 1998). Accordingly, Parker has failed to establish that Matheny‘s recantation amounts to a constitutional error that can be addressed by a petition for post-conviction relief.
{¶ 20} We also note that Matheny‘s affidavit does not exonerate Parker. In her affidavit, Matheny doеs not claim that Parker is innocent. Rather, Matheny merely avers that she did not witness Wilt‘s assault and kidnapping. In light of the foregoing, the trial court did not err when it dismissed his motion for leave to file a delayed petition for post-conviction relief without an evidentiary hearing.
{¶ 21} Parker‘s first and second assignments of error are overruled.
{¶ 22} All of Parker‘s assignments of error having been overruled, the judgment of
FROELICH, J. and WELBAUM, J., concur.
Copies mailed to:
R. Lynn Nothstine
Ronald Parker III
Hon. Mary L. Wiseman