State v. TheislerState v. Theisler
Robert Troll Lynch, 26300 Seville Drive, Suite 104, Beachwood, OH 44122 (For Defendant-Appellant).
O P I N I O N
TIMOTHY P. CANNON, J.
{¶1} Appellant, Charles W. Theisler, appeals from the judgment entered by the Trumbull County Court of Common Pleas. The trial court denied Theisler’s petition for postconviction relief.
{¶2} Theisler was indicted for 118 counts related to his activity at Pain Management Associates from 2001 to 2004. Theisler had a medical degree but did not have a license to practice medicine or the authority to dispense prescription drugs in Ohio. The indictment alleged, among other matters, that Theisler was practicing
{¶3} Theisler pled not guilty to the charges, and a jury trial was held. Prior to trial, 12 counts of the indictment were dismissed at the request of the state. The jury found Theisler guilty of 86 counts, including one count of engaging in a pattern of corrupt activity and multiple counts of illegal processing of drug documents, aggravated trafficking in drugs, and practicing medicine or surgery without a certificate. On September 6, 2005, the trial court sentenced Theisler to an aggregate prison term of three years.
{¶4} Theisler filed a timely direct appeal of the trial court’s judgment entry of sentence to this court. On appeal, this court affirmed the judgment of the trial court. State v. Theisler, 11th Dist. No. 2005-T-0106, 2007-Ohio-213.
{¶5} On October 28, 2008, Theisler filed a petition for postconviction relief. Theisler attached an affidavit from Daniel Goodrich to his petition. Therein, Goodrich states he is a licensed physician assistant and would have testified as an expert witness regarding the duties of physician assistants. In addition, Theisler filed a “memorandum in support of waiver of time deadline pursuant to postconviction relief.” Theisler attached his own affidavit to this memorandum, wherein he states his prior counsel did not inform him of Ohio’s postconviction relief procedure, including the time deadline. In response to Theisler’s motions, the state filed a motion to dismiss Theisler’s petition for postconviction relief. Theisler filed a reply to the state’s motion to dismiss. Theisler attached an affidavit from Deborah Nash to his reply. In her affidavit, Nash states that she was employed as the office administrator at Pain Management Associates when Theisler worked there. In addition, she states that Theisler performed the work of a
{¶6} Theisler raises seven assignments of error. We will address his assigned errors out of numerical order. Theisler’s first and sixth assignments of error are:
{¶7} “[1.] The trial court erred in failing to grant waiver of time deadline for Post-Conviction Relief.
{¶8} “[6.] The trial court erred by failing to recognize that the facts of this case do not bar petition for Post-Conviction Relief, and such trial court should have waived the filing deadline due to ineffective assistance of counsel.”
{¶9} Theisler argues the trial court should have considered his untimely petition for postconviction relief.
{¶10} This court has held that, “[p]ursuant to
{¶11} “(A) Whether a hearing is or is not held on a petition filed pursuant to section
2953.21 of the Revised Code , a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:{¶12} “(1) Both of the following apply:
(a) Either 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, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court 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.(b) 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 sentence of death that, but for constitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.
(2) [This subsection is not applicable. It pertains to an inmate’s actual innocence as demonstrated by the results of DNA testing.]”
{¶16} The transcripts were filed with this court in Theisler’s direct appeal in December 2005. He did not file his petition for postconviction relief until October 2008. Thus, since his petition was filed more than 180 days after the trial transcript was filed, it is untimely.
{¶17} Theisler does not contend that the United States Supreme Court has recently recognized a new constitutional right that applies to his case. Thus, he must demonstrate that he was “unavoidably prevented” from discovering the facts necessary to submit his petition for postconviction relief.
{¶18} In addition, Theisler submitted his own affidavit, which was attached to his memorandum in support of waiving the time deadline of
{¶19} “[Appellant] argues he was precluded from discovering the fact that he could file a petition for postconviction relief because none of his attorneys informed him of this right or of the time restrictions. However, we note the statute requires [appellant] to show that he was unable to discover the ‘facts upon which the petitioner must rely to present the claim.’
R.C. 2953.23(A)(1)(a) . (Emphasis added.) [Appellant’s] assertion that he was not informed of the procedural mechanism of postconviction relief does not satisfy this requirement.” State v. Amato, 11th Dist. No. 2008-L-022, 2009-Ohio-2950, ¶19.
{¶21} Theisler has not met his burden of demonstrating that one of the factors of
{¶22} Moreover, under
{¶23} Accordingly, the trial court did not have jurisdiction to hear Theisler’s untimely petition for postconviction relief.
{¶24} Theisler’s first and sixth assignments of error are without merit.
{¶25} Theisler’s remaining assignments of error are:
{¶26} “[2.] The trial court erred in failing to grant the Post Conviction Relief Petition due to ineffective assistance of trial counsel.
{¶27} “[3.] The trial court erred in failing to recognize the ‘operative facts’ of the petition are sufficient to indicate ineffective assistance of trial counsel.
{¶28} “[4.] The lower court erred in failing to recognize the ‘totality of the evidence’ indicates ineffective assistance of trial counsel.”
{¶30} “[7.] The trial court erred in failing to recognize that this matter required a formal hearing on the Post-Conviction Relief Petition.”
{¶31} Having found Theisler’s petition for postconviction relief was untimely and none of the exceptions of
{¶32} Accordingly, Theisler’s remaining assignments of error are moot.
{¶33} The judgment of the Trumbull County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.