State v. WestState v. West
Darrick J. West, #289000, P.O. Box 740, London, OH 43140 Defendant-Appellant, Pro Se
O P I N I O N
Rendered on the 30th day of December, 2009.
GRADY, J.:
{¶ 1} Defendant, Darrick West, appeals from a judgment that denied his petition for post-conviction relief, without a hearing.
{¶ 2} Defendant was found guilty following a jury trial in 1994 of four counts of aggravated robbery and three counts of felonious assault, all with firearm specifications, and was
{¶ 3} On March 17, 2004, Defendant filed a petition for post-conviction relief pursuant to
{¶ 4} Defendant timely appealed to this court from the trial court’s decision dismissing his petition for post-conviction relief.
FIRST ASSIGNMENT OF ERROR
{¶ 5} “IT IS ERROR FOR THE TRIAL COURT TO DENY A PETITION FOR POST-CONVICTION RELIEF AS UNTIMELY WHEN PETITION SETS FORTH OPERATIVE FACTS THAT THE PETITIONER WAS UNAVOIDABLY PREVENTED FROM PRESENTMENT OF EVIDENCE UPON WHICH HIS CLAIMS FOR RELIEF MUST RELY.”
{¶ 7} The time bar imposed by
{¶ 8} Defendant argues that he was wrongfully convicted of the crimes involving Brenda Peyatt because another person, Winston Burton, Jr., confessed to committing those crimes. Defendant argues that because he did not obtain Burton’s affidavit until many years after his trial concluded, he was unavoidably prevented from discovering evidence upon which he must rely to present his claim for relief. The record shows otherwise.
{¶ 9} On May 24, 2001, Winston Burton, Jr., gave a statement to Defendant, wherein Burton confessed to committing the crimes involving Brenda Peyatt for which Defendant had been convicted. On May 1, 2003, Burton gave Defendant another statement concerning the crimes against Peyatt. On October 8, 2008, Defendant obtained Burton’s affidavit, wherein Burton confessed to committing the crimes against Peyatt.
{¶ 10} Although the record clearly shows that as early as May 24, 2001, Defendant knew of Burton’s confession that he committed the crimes against Peyatt, there is no explanation by Defendant for the nearly three year intervening delay before Defendant presented this claim for post-conviction relief. A post-conviction petition must be filed within a reasonable time after learning of new facts. State v. Bristow (Dec. 22, 2000), Richland App. No. 00-CA-17-2.
{¶ 11} More importantly, it is clear from the evidence presented at Defendant’s trial that Burton’s conduct in claiming responsibility for the crimes against Peyatt does not constitute a “new fact” that Defendant was unavoidably prevented from discovering. To the contrary, as part of his defense at trial, Defendant and three of his witnesses testified that Burton admitted that he had committed the crimes against Peyatt. Defendant was clearly not prevented from discovering the facts upon which he must now rely to present his claim for relief. Indeed, those facts were introduced in evidence at Defendant’s trial. Reduction of Burton’s confession to affidavit form is not a new evidentiary fact. Because Defendant’s petition was not timely filed, and Defendant failed to demonstrate that the exceptions in
{¶ 12} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 13} “THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING A HEARING ON PETITION.”
{¶ 14} Defendant argues that the trial court erred in not
{¶ 15} Defendant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 16} “ASIDE FROM THE NEW EVIDENCE THE PROCESS WAS TAINTED BY DEFECT IN THE INDICTMENT.”
{¶ 17} Relying upon State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (Colon I), Defendant argues that his indictment was defective because the aggravated robbery counts in violation of
{¶ 18} Defendant’s third assignment of error is overruled.
{¶ 19} The judgment of the trial court is affirmed.
Copies mailed to:
Amy M. Smith, Esq.
Darrick J. West
Hon. Richard J. O’Neill