STATE OF OHIO v. REJUAN YATES
Appellate Case No. 25308
Trial Court Case No. 09-CR-3827
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
Rendered on the 2nd day of August, 2013.
[Cite as State v. Yates, 2013-Ohio-3388.]
REJUAN YATES, #A628-593, London Correctional Institution, Post Office Box 69, London, Ohio 43140-0069 Defendant-Appellant, pro se
FAIN, P.J.
O P I N I O N
{¶ 1} Defendant-appellant Rejuan Yates appeals from an order dismissing his
{¶ 2} We conclude that Yates‘s petition for post-conviction relief was untimely. Accordingly, the judgment of the trial court is Affirmed.
I. Course of the Proceedings
{¶ 3} In February 2010, рursuant to a negotiated plea agreement, with a motion to suppress pending, Rejuan Yates pled guilty to Possession of Heroin, a second-degree felony. The plea agreement provided for a two-year sentence. Before releasing him on bond, the trial court made it clear to Yates that this two-year sentence was conditioned on Yates appearing at his presentence-investigation interviеw and appearing at his March 10 sentencing hearing. The trial court explained that it could sentence him to up to eight years if he failed to show up at the interview and sentencing hearing.
{¶ 4} Yates failed to show up fоr either the interview or sentencing hearing. The trial court issued a warrant for his arrest, and Yates was later found and arrested in Cincinnati. After the sentencing hearing, the trial court imposed a five-year prison sentencе and a fine of $7,500. Yates appealed from his conviction and sentence. We reversed the sentence imposed on Yates, because it was unclear whether Yates or his counsel had an opportunity to review a bond report prior to sentencing and whether the trial court considered the bond report for purposes of sentencing. We remanded the cause for resentencing. State v. Yates, 195 Ohio App.3d 33, 2011-Ohio-3619, 958 N.E.2d 640 (2d Dist.).
{¶ 5} On remand, the trial court again imposed a prison sentence of five years. Yates appealed from his sentence, raising five assignments of error relating to his prison sentence and fine. We overruled the five assignments of error and affirmed. State v. Yates, 2d Dist. Montgomery No. 24823, 2012-Ohio-1781.
{¶ 6} On April 11, 2012, Yates filed a petition for post-conviction relief, contending that his trial counsel provided ineffective assistance of counsel by failing to investigate material witnesses and by using incorrеct information to coerce Yates into entering a guilty plea. The State moved to dismiss the petition as untimely, contending that Yates failed to comply with the 180-day filing requirement in
{¶ 7} From the order dismissing his petition, Yates appeals.
II. Yates‘s Petition Is Untimely
{¶ 8} Yates‘s Second Assignment of Error states:
PETITIONER STATES THAT THE TRIAL COURT ABUSED ITS DISCRETION THE PETITIONER SHOWED A[N] APPROPRIATE JUSTIFICATION FOR DELAY IN FILING HIS PETITION FOR POST-CONVICTION RELIEF - FURTHER THE PETITIONER[‘]S COUNSEL WAS INEFFECTIVE TRIAL COUNSEL THE PETITIONER DID NOT FIND THE EVIDENCE RELATED TO HIS COUNSEL[‘]S INEFFECTIVE ASSISTANCE UNTIL HE RECIEVED [SIC] A LETTER, AND FOUND HIS COUNSEL PROVIDED THE WRONG CASE AUTHORITY, AND COUNSEL
FAILED TO INVESTIGATE ELAINE DRAKE, AND ALTON EVERETT, AND LAQUITE BODY, FURTHER THE ATTORNEY FAILED TO INVESTIGATE DETECTIVE DAVID HOUSE AS WELL.
{¶ 9}
{¶ 10}
(a) Either the рetitioner 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 petitionеr‘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 whiсh 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.
{¶ 11} In support of his petition for post-conviction relief, Yates submitted affidavits of himself, Elaine Drake, Alton Everett, and Yates‘s girlfriend. Drake and Everett allegedly witnessed Yates‘s arrest аnd the constitutional violations that Yates claims in his petition. The trial court reviewed the petition and affidavits and found that Yates failed to satisfy the requirements of
By his own admission in his Petition, both Drake and Everett were subpоenaed and appeared at the time of the scheduled hearing on Yates’ Motion to Suppress. Further, there is no evidence that Yates was unavoidably prevented from finding the evidence that he certainly was aware of at the time the motion to suppress was filed, particularly because he could have testified about the alleged constitutional violations. Instead, the Petition is focused on the merits of the Motion to Suppress, and not on any alleged ineffective assistance of counsel. * * * [T]he court finds that Yates was not unavoidably prevented from finding the evidence that he claims supports his argument that his counsel was less than effective. * * * The court need not address the merits of the untimely Petition, as
this court lacks jurisdiction to consider the same.
Dkt. 14, p. 4.
{¶ 12} We have reviewed the record before us, including the affidavits submitted in support of Yates‘s petition for post-conviction relief. Elaine Drake stated in her affidavit that she and her boyfriend witnessed the police attempting to search Yates. She also stated that she came to the courthouse with her boyfriend on February 10, 2010, presumably to testify at thе suppression hearing about what she had witnessed. But Yates‘s counsel met her at the court on that day and told her that her testimony was no longer needed. Alton Everett, who apparently is Drake‘s boyfriend, completed an affidavit with averments similar to those in Drake‘s affidavit. Yates‘s girlfriend also executed an affidavit. She recounted the events from the day on which Yates was searched by the police. Yates also prepаred two affidavits in which he recounted the events from the day on which the police conducted a search of his person. Yates stated that he made his trial attorney aware of the fact that there were other witnesses to the events of that day.
{¶ 13} The affidavits submitted by Yates fail to establish that he “was unavoidably prevented from discovery of the facts upon which” he must rely to present his claim for relief.
{¶ 14} Yates also contends thаt he was unavoidably prevented from discovering his trial counsel‘s ineffectiveness until after the 180-day filing period. According to Yates, his trial counsel mistakenly relied on a decision of the United States Supreme Court when аdvising Yates to accept a plea bargain with the State rather than going forward with the suppression hearing. However, even if we were to assume that trial counsel did in fact make a mistake in relying on the Supremе Court case, Yates did not establish that he was unavoidably prevented from discovering this allegedly erroneous reliance by his trial counsel prior to the expiration of the 180-day filing period. To the contrary, Yatеs concedes that his trial counsel referred to the Supreme Court case when he was deciding whether to accept the plea bargain with the State.
{¶ 15} Finally, Yates mentions in his appellate brief the United Stаtes Supreme Court decision in Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). Yates appears to be contending that the Frye case “recognized a new federal or state right that applies retroactively to” him, and that his petition asserts a claim based on that right.
{¶ 16} In Frye, the Court held that, “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Id. at 1408. Defense counsel failed to do so in Frye. Consequently, trial counsel in Frye did not render the effective assistance the
{¶ 17} Yates does not explain how the Frye case recognized a new federal or state right
{¶ 18} Yates failed either to file his petition for post-conviction relief within the 180 days prescribed in
{¶ 19} Yates‘s Second Assignment of Error is overruled.
III. Yates‘s First Assignment of Error Is Overruled as Moot
{¶ 20} Yates‘s First Assignment of Error states:
COUNSEL WAS INEFFECTIVE UNDER THE UNITED STATES CONSTITUTION AMENDMENTS V, VI, VIII AND XIV; OHIO CONSTITUTION ARTICLE 1 §§ 1, 2, 5, 9, 10,
16, AND 20 WHEN HE FAILED TO INVESTIGATE MATERIAL WITNESSES THAT WOULD HAVE PROVIDED A COMPLETE DEFENSE TO THE PETITIONER‘S CHARGE AND USED INCORRECT INFORMATION TO COERCE THE PETITIONER INTO ENTERING A PLEA BARGAIN.
{¶ 21} Based on our disposition of Yates‘s Second Assignment of Error, in Part II above, we need not address the merits of Yates‘s contention that he received ineffective assistance of trial counsel. Therefore, Yates‘s First Assignment of Error is overruled as moot.
IV. Conclusion
{¶ 22} Both of Yates‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
FROELICH and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
Rejuan Yates
Hon. Mary K. Huffman