STATE OF OHIO, PLAINTIFF-APPELLEE vs. CHARLES SHEPHERD, DEFENDANT-APPELLANT
No. 100660
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 24, 2014
2014-Ohio-1736
BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and E.A. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-02-427416-A. RELEASED AND JOURNALIZED: April 24, 2014.
Charles Shepherd, pro se
434-286 Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Charles Shepherd (“Shepherd“), appeals the denial of his
{¶2} In 2002, Shepherd was charged with rape and attempted kidnapping. The charges included sexually violent predator, repeat violent offender, and sexually motivated specifications. At a jury trial, an investigating officer testified that Shepherd and the victim had a sexual relationship for a long period of time. Shepherd told police that he and the victim were “boyfriend and girlfriend” and that the sex was consensual.
{¶3} However, the officer testified that the victim‘s diminutive mental capabilities were immediately apparent to others and that the victim was incapable of consenting to a sexual relationship. “The victim had child-like interests, such as completing puzzles, coloring, watching television shows such as Clifford the Big Red Dog and Scooby Doo, and playing hide and seek with her best friend who was a child.” State v. Shepherd, 8th Dist. Cuyahoga No. 81926, 2003-Ohio-3356, ¶ 6. An expert witness testified that the victim‘s mental age was that of a five-year-old. He further stated that the victim had an IQ of about 33 or 34 and that an IQ of 70 or below indicates severe mental retardation.
{¶4} The jury found Shepherd guilty of rape and attempted kidnaping. The court found him guilty of the sexually violent predator, repeat violent offender, and sexually motivated specifications and sentenced Shepherd to 38 years to life in prison. This court affirmed Shepherd‘s convictions and sentence. Shepherd at ¶ 1, 102.
Civ.R. 60(B)
{¶6} In the first assignment of error, Shepherd argues the trial court erred in dismissing his
{¶7}
{¶8} The trial court denied Shepherd‘s petition for postconviction relief as “improper under the rules and untimely.” Shepherd contends the court erred in denying his petition without a hearing. However, a trial court is not required to hold a hearing on a petition for postconviction relief if the record and the petition fail to show that the defendant is entitled to relief. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus.
{¶9}
{¶10} The trial court may nevertheless consider an untimely petition for postconviction relief if (1) the petitioner demonstrates that he was unavoidably prevented from discovering the facts on which he relies in the petition, or (2) that the United States Supreme Court has, since his last petition, recognized a new federal or state right that
{¶11} In this case, Shepherd‘s petition was filed over ten years after he filed the trial transcript in his direct appeal. Because Shepherd filed his petition outside the statutory 180-day limitations period, the petition is untimely, and Shepherd failed to demonstrate that he was unavoidably prevented from discovering facts relating to his petition or that any new federal or state right retroactively applies to him. Therefore, because his petition was filed beyond the statutory deadline, and none of the exceptions to the statutory time limitation were established, the trial court properly denied Shepherd‘s petition as untimely.
{¶12} Accordingly, the first assignment of error is overruled.
Victim‘s Affidavit
{¶13} In the second assignment of error, Shepherd argues the trial court erred in dismissing his petition for postconviction relief without considering the affidavit attached to the petition. The court struck the petition as “improperly notarized.”
{¶14} The affidavit contained a purported statement by the victim in which she averred that she was Shepherd‘s “girlfriend” and “lover” for years and was “coerced into making statements that were untrue and involved unfounded facts and fabrications about a rape that never happened.” The affidavit contains the victim‘s signature as well as a
{¶15} Furthermore, evidence in the record indicates the victim was incapable of understanding the statements presented in the affidavit. As previously stated, the victim is a severely handicapped and mentally retarded woman. There was expert evidence presented at trial that she had a mental capacity of a five year old. Therefore, the trial court had good reason to believe the victim‘s purported statement was unreliable. Moreover, Shepherd‘s representation that his relationship with the victim was that of “boyfriend and girlfriend” was previously presented at trial and rejected.
{¶16} Therefore, the second assignment of error is overruled.
{¶17} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR