State v. Alford

2021 Ohio 2856

• Court: Ohio Court of Appeals
• Decided: August 20, 2021
• Docket: 29003
• Status: Published

Opinion

[Cite as State v. Alford, 2021-Ohio-2856.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 29003 : v. : Trial Court Case No. 1983-CR-2225 : BRIAN K. ALFORD : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 20th day of August, 2021.

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BRIAN K. ALFORD, Inmate No. A196-744, Toledo Correctional Institution, P.O. Box 80033, Toledo, Ohio 43608 Defendant-Appellant, Pro Se

.............

WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Brian K. Alford, appeals from an order of the

Montgomery County Court of Common Pleas denying his petition for post-conviction

relief. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} In 1984, a jury found Alford guilty of one count of aggravated robbery with a

firearm specification and three counts of robbery. Following the jury’s verdict, the trial

court sentenced Alford to serve 3 to 15 years in prison for each of the robbery counts, 5

to 25 years in prison for the aggravated robbery count, and 3 years in prison for the firearm

specification. The trial court ordered all the sentences to be served consecutively.

Alford then appealed his conviction.

{¶ 3} In support of his appeal, Alford argued that the trial court erred by: (1) failing

to suppress identification evidence; (2) denying his motion to sever his charges for trial;

and (3) admitting certain exhibits at trial. This court found no merit to any of Alford’s

claims and affirmed his conviction. State v. Alford, 2d Dist. Montgomery No. 8831, 1985

WL 8726 (June 14, 1985).

{¶ 4} On March 31, 1997, approximately 12 years after this court affirmed his

conviction, Alford filed a pro se motion to modify his sentence. The trial court treated the

motion as a petition for post-conviction relief and denied it without a hearing. Alford

appealed the denial of his motion and this court affirmed the judgment of the trial court.

State v. Alford, 2d Dist. Montgomery No. 16528, 1998 WL 12651 (Jan. 16, 1998).

{¶ 5} Over the next 23 years, Alford filed several other pro se motions with the trial -3-

court. Relevant to this appeal is Alford’s “Petition to Vacate or Set Aside Judgment of

Conviction or Sentence,” which he filed on November 17, 2020. In his petition, Alford

claimed that his trial counsel provided ineffective assistance by failing to object to

“impermissibly suggestive” pretrial identification procedures. Alford also claimed that his

appellate counsel provided ineffective assistance during his appeal by failing to argue

that his trial counsel was ineffective.

{¶ 6} On December 11, 2020, the trial court issued an order and entry denying

Alford’s petition. Alford now appeals from that order, raising a single assignment of error

for review.

Assignment of Error

{¶ 7} In his sole assignment of error, Alford contends that the trial court erred by

denying his petition for post-conviction relief without issuing findings of fact and

conclusions of law. We disagree.

{¶ 8} The trial court “has no duty to issue findings of fact and conclusions of law

on successive or untimely petitions for post-conviction relief.” (Citations omitted.) State

ex rel. George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, 889 N.E.2d 533, ¶ 6.

With regard to timeliness, when a direct appeal from a conviction has been taken, a

petition for post-conviction relief must be filed no later than 365 days after the date on

which the trial transcript is filed in the court of appeals in the direct appeal of the judgment

of conviction. R.C. 2953.21(A)(2). A trial court lacks jurisdiction to consider an untimely

petition for post-conviction relief unless the untimeliness is excused under R.C.

2953.23(A). State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-Ohio-1921, -4-

¶ 16, citing State v. Johnson, 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 11.

(Other citations omitted.)

{¶ 9} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or

successive petition for post-conviction relief unless (1) the defendant was unavoidably

prevented from discovering the facts upon which he or she relies to present the claim, or

(2) the United States Supreme Court recognizes a new federal or state right that applies

retroactively to his or her situation and the petition asserts a claim based on that right.”

State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ¶ 13. “The petitioner

must also show by clear and convincing evidence that, if not for the constitutional error

from which he suffered, no reasonable factfinder would have found him guilty.” Id., citing

R.C. 2953.23(A)(1)(b).

{¶ 10} In this case, Alford’s direct appeal was decided by this court 35 years ago.

Alford also previously filed a petition for post-conviction relief in 1997. Therefore, the

petition for post-conviction relief at issue in this appeal is both untimely and successive.

Alford’s untimely, successive petition is not excused under R.C. 2953.23(A) because

Alford was not unavoidably prevented from discovering the facts underlying the ineffective

assistance claims that he raised in his petition. Alford’s petition is also not based on a

new federal or state right. Therefore, because Alford’s petition is untimely and

successive, the trial court lacked jurisdiction to consider the petition and had no duty to

issue findings of fact and conclusions of law when denying it. See Burnside at ¶ 6.

{¶ 11} Since Alford’s petition included an argument that his appellate counsel was

ineffective, we note that “[i]t is well established that claims alleging the ineffective

assistance of appellate counsel are not cognizable in post-conviction proceedings and -5-

that a petition for post-conviction relief is not the appropriate means in which to raise that

issue.” State v. Owensby, 2d Dist. Montgomery No. 27607, 2018-Ohio-2967, ¶ 12, citing

State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), paragraph one of the

syllabus. (Other citations omitted.) “Instead, App.R. 26(B) permits a court of appeals

to consider ineffective assistance of appellate counsel claims by motion filed within 90

days after journalization of the judgment of the appellate court.” Id., citing State v.

Moore, 10th Dist. Franklin No. 14AP-390, 2015-Ohio-426, ¶ 8.

{¶ 12} For the foregoing reasons, Alford’s sole assignment of error is overruled.

Conclusion

{¶ 13} Having overruled Alford’s assignment of error, the order of the trial court

denying Alford’s petition for post-conviction relief is affirmed.

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Brian K. Alford Hon. Gerald Parker