[Cite as State v. Brown, 2022-Ohio-519.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 20CA3917
v. :
JAMES E. BROWN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
James E. Brown, Chillicothe, Ohio, pro se appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:2-18-22 ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment that overruled a petition for postconviction
relief filed by James E. Brown, defendant below and appellant
herein. Appellant assigns the following error for review:
“THE COURT OF COMMON PLEAS ERRED IN OVERRULING THE PETITION TO VACATE OR SET ASIDE JUDGMENT OF CONVICTION OR SENTENCE PURSUANT TO OHIO CRIM.R. 35 AND 2953.23 OF THE REVISED CODE, BASED ON NEWLY DISCOVERED EVIDENCE. ADDITIONALLY, THIS ERROR IS A 2 SCIOTO, 20CA3917
VIOLATION OF APPELLANT’S FUNDAMENTAL RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
{¶2} In 2013, a jury found appellant guilty of multiple
drug-related offenses. The trial court sentenced appellant to
terms of imprisonment that resulted in an aggregate prison
sentence of 16 years. Appellant appealed the trial court’s
judgment, and we affirmed. State v. Brown, 2016-Ohio-1453, 63
N.E.3d 509 (4th Dist.). The Ohio Supreme Court did not accept
appellant’s request for further review. State v. Brown, 146
Ohio St.3d 1515, 2016-Ohio-7199, 60 N.E.3d 7.
{¶3} While his direct appeal was pending, appellant filed a
pro se R.C. 2953.21 petition to vacate or set aside judgment of
conviction or sentence and requested an evidentiary hearing.
Several years later, the trial court overruled appellant’s
petition because appellant did not file his postconviction
petition within the appropriate time frame. Appellant appealed
the trial court’s judgment, and we affirmed. State v. Brown,
4th Dist. Scioto No. 18CA3829, 2018-Ohio-4991. The Ohio Supreme
Court did not accept appellant’s request for further review.
State v. Brown, 156 Ohio St.3d 1406, 2019-Ohio-2261, 123 N.E.3d
1039. 3 SCIOTO, 20CA3917
{¶4} On March 26, 2020, appellant filed a second petition
to vacate or set aside judgment of conviction or sentence and
asserted that he is entitled to postconviction relief due to the
discovery of new evidence. Appellant alleged that since the
date of his trial, new evidence had been discovered concerning
the trial judge’s competence to preside over appellant’s trial
and that appellant could not discover the facts at an earlier
point in time.
{¶5} Later, the trial court summarily overruled appellant’s
petition to vacate or set aside his judgment of conviction.
This appeal followed.
{¶6} In his sole assignment of error, appellant asserts
that the trial court erred by overruling his postconviction
relief petition. “[A] postconviction proceeding is not an
appeal of a criminal conviction but rather, is a collateral,
civil attack on a criminal judgment.” State v. Broom, 146 Ohio
St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28, citing State v.
Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); accord
State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶
11. A postconviction proceeding is designed, in part, to
determine whether “there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United 4 SCIOTO, 20CA3917
States.” R.C. 2953.21(A)(1)(a)(i). A petitioner who seeks
postconviction relief under R.C. 2953.21(A)(1)(a)(i), therefore,
“must demonstrate errors of a constitutional magnitude and
resulting prejudice before being entitled to relief under the
statute.” In re B.C.S., 4th Dist. Washington 07CA60, 2008-Ohio-
5771, ¶ 10; accord State v. Silsby, 119 Ohio St.3d 370, 2008-
Ohio-3834, 894 N.E.2d 667, ¶ 16 (postconviction proceeding
asserts judgment void due to petitioner’s claimed “actual
innocence or deprivation of constitutional rights”).
{¶7} The right to file a postconviction petition is not a
constitutional right. Broom at ¶ 28. Rather, it is a statutory
right. State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75
N.E.3d 141, ¶ 16. “A postconviction petitioner therefore
‘receives no more rights than those granted by the statute.’”
State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, ¶ 35, quoting State v. Calhoun, 86 Ohio St.3d 279,
281, 714 N.E.2d 905 (1999).
{¶8} R.C. Chapter 2953 defines the postconviction rights
granted to postconviction petitioners. R.C. 2953.21(A)(2)(a)
requires an individual to file a postconviction petition within
(1) 365 days from the date on which the trial transcript was
filed in the court of appeals in the direct appeal of the
judgment of conviction; or (2) 365 days after the expiration of 5 SCIOTO, 20CA3917
the time for filing the notice of appeal, if no direct appeal is
taken. When a defendant files an untimely petition, or files a
second petition or successive petitions, R.C. 2953.23(A)
prevents trial courts from entertaining the petition unless both
of the following apply: (1) the petitioner shows either that the
petitioner “was unavoidably prevented from discovery of the
facts upon which the petitioner must rely to present the claim
for relief” or that “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”; and (2) “[t]he petitioner shows by
clear and convincing evidence that, but for constitutional error
at trial, no reasonable factfinder would have found the
petitioner guilty.” R.C. 2953.23(A)(1)(a) and (b).1
{¶9} “A defendant is ‘unavoidably prevented’ from the
discovery of facts if he had no knowledge of the existence of
those facts and could not have, in the exercise of reasonable
diligence, learned of their existence within the time specified
for filing his petition for postconviction relief.” State v.
Cunningham, 65 N.E.3d 307, 2016-Ohio-3106, ¶ 19 (3d Dist.),
1 Another exception, not applicable here, allows a court to entertain an untimely, second, or successive petition if DNA testing results “establish, by clear and convincing evidence” the petitioner’s “actual innocence.” R.C. 2953.23(A)(2). 6 SCIOTO, 20CA3917
citing State v. Holnapy, 11th Dist. Lake No.2013–L–002, 2013-
Ohio-4307, ¶ 32, and State v. Roark, 10th Dist. Franklin No.
15AP-142, 2015-Ohio-3206, ¶ 11. Moreover, “[t]he ‘facts’
contemplated by this provision are the historical facts of the
case, which occurred up to and including the time of
conviction.” State v. Williamitis, 2d Dist. Montgomery No.
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[Cite as State v. Brown, 2022-Ohio-519.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 20CA3917
v. :
JAMES E. BROWN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
________________________________________________________________
APPEARANCES:
James E. Brown, Chillicothe, Ohio, pro se appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:2-18-22 ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas
Court judgment that overruled a petition for postconviction
relief filed by James E. Brown, defendant below and appellant
herein. Appellant assigns the following error for review:
“THE COURT OF COMMON PLEAS ERRED IN OVERRULING THE PETITION TO VACATE OR SET ASIDE JUDGMENT OF CONVICTION OR SENTENCE PURSUANT TO OHIO CRIM.R. 35 AND 2953.23 OF THE REVISED CODE, BASED ON NEWLY DISCOVERED EVIDENCE. ADDITIONALLY, THIS ERROR IS A 2 SCIOTO, 20CA3917
VIOLATION OF APPELLANT’S FUNDAMENTAL RIGHTS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
{¶2} In 2013, a jury found appellant guilty of multiple
drug-related offenses. The trial court sentenced appellant to
terms of imprisonment that resulted in an aggregate prison
sentence of 16 years. Appellant appealed the trial court’s
judgment, and we affirmed. State v. Brown, 2016-Ohio-1453, 63
N.E.3d 509 (4th Dist.). The Ohio Supreme Court did not accept
appellant’s request for further review. State v. Brown, 146
Ohio St.3d 1515, 2016-Ohio-7199, 60 N.E.3d 7.
{¶3} While his direct appeal was pending, appellant filed a
pro se R.C. 2953.21 petition to vacate or set aside judgment of
conviction or sentence and requested an evidentiary hearing.
Several years later, the trial court overruled appellant’s
petition because appellant did not file his postconviction
petition within the appropriate time frame. Appellant appealed
the trial court’s judgment, and we affirmed. State v. Brown,
4th Dist. Scioto No. 18CA3829, 2018-Ohio-4991. The Ohio Supreme
Court did not accept appellant’s request for further review.
State v. Brown, 156 Ohio St.3d 1406, 2019-Ohio-2261, 123 N.E.3d
1039. 3 SCIOTO, 20CA3917
{¶4} On March 26, 2020, appellant filed a second petition
to vacate or set aside judgment of conviction or sentence and
asserted that he is entitled to postconviction relief due to the
discovery of new evidence. Appellant alleged that since the
date of his trial, new evidence had been discovered concerning
the trial judge’s competence to preside over appellant’s trial
and that appellant could not discover the facts at an earlier
point in time.
{¶5} Later, the trial court summarily overruled appellant’s
petition to vacate or set aside his judgment of conviction.
This appeal followed.
{¶6} In his sole assignment of error, appellant asserts
that the trial court erred by overruling his postconviction
relief petition. “[A] postconviction proceeding is not an
appeal of a criminal conviction but rather, is a collateral,
civil attack on a criminal judgment.” State v. Broom, 146 Ohio
St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28, citing State v.
Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); accord
State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-2720, ¶
11. A postconviction proceeding is designed, in part, to
determine whether “there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable
under the Ohio Constitution or the Constitution of the United 4 SCIOTO, 20CA3917
States.” R.C. 2953.21(A)(1)(a)(i). A petitioner who seeks
postconviction relief under R.C. 2953.21(A)(1)(a)(i), therefore,
“must demonstrate errors of a constitutional magnitude and
resulting prejudice before being entitled to relief under the
statute.” In re B.C.S., 4th Dist. Washington 07CA60, 2008-Ohio-
5771, ¶ 10; accord State v. Silsby, 119 Ohio St.3d 370, 2008-
Ohio-3834, 894 N.E.2d 667, ¶ 16 (postconviction proceeding
asserts judgment void due to petitioner’s claimed “actual
innocence or deprivation of constitutional rights”).
{¶7} The right to file a postconviction petition is not a
constitutional right. Broom at ¶ 28. Rather, it is a statutory
right. State v. Noling, 149 Ohio St.3d 327, 2016-Ohio-8252, 75
N.E.3d 141, ¶ 16. “A postconviction petitioner therefore
‘receives no more rights than those granted by the statute.’”
State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, ¶ 35, quoting State v. Calhoun, 86 Ohio St.3d 279,
281, 714 N.E.2d 905 (1999).
{¶8} R.C. Chapter 2953 defines the postconviction rights
granted to postconviction petitioners. R.C. 2953.21(A)(2)(a)
requires an individual to file a postconviction petition within
(1) 365 days from the date on which the trial transcript was
filed in the court of appeals in the direct appeal of the
judgment of conviction; or (2) 365 days after the expiration of 5 SCIOTO, 20CA3917
the time for filing the notice of appeal, if no direct appeal is
taken. When a defendant files an untimely petition, or files a
second petition or successive petitions, R.C. 2953.23(A)
prevents trial courts from entertaining the petition unless both
of the following apply: (1) the petitioner shows either that the
petitioner “was unavoidably prevented from discovery of the
facts upon which the petitioner must rely to present the claim
for relief” or that “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”; and (2) “[t]he petitioner shows by
clear and convincing evidence that, but for constitutional error
at trial, no reasonable factfinder would have found the
petitioner guilty.” R.C. 2953.23(A)(1)(a) and (b).1
{¶9} “A defendant is ‘unavoidably prevented’ from the
discovery of facts if he had no knowledge of the existence of
those facts and could not have, in the exercise of reasonable
diligence, learned of their existence within the time specified
for filing his petition for postconviction relief.” State v.
Cunningham, 65 N.E.3d 307, 2016-Ohio-3106, ¶ 19 (3d Dist.),
1 Another exception, not applicable here, allows a court to entertain an untimely, second, or successive petition if DNA testing results “establish, by clear and convincing evidence” the petitioner’s “actual innocence.” R.C. 2953.23(A)(2). 6 SCIOTO, 20CA3917
citing State v. Holnapy, 11th Dist. Lake No.2013–L–002, 2013-
Ohio-4307, ¶ 32, and State v. Roark, 10th Dist. Franklin No.
15AP-142, 2015-Ohio-3206, ¶ 11. Moreover, “[t]he ‘facts’
contemplated by this provision are the historical facts of the
case, which occurred up to and including the time of
conviction.” State v. Williamitis, 2d Dist. Montgomery No.
21321, 2006-Ohio-2904, ¶ 18.
{¶10} A trial court lacks jurisdiction to consider an
untimely, second, or successive petition if the petitioner fails
to satisfy the R.C. 2953.23(A)(1)(a) and (b) conditions. State
v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151,
¶ 19; Apanovitch at ¶ 36; State v. McManaway, 4th Dist. Hocking
No. 16CA8, 2016-Ohio-7470, ¶ 13-16. Whether a trial court
possesses jurisdiction to entertain an untimely, second, or
successive postconviction petition is a question of law that
appellate courts review independently and without deference to
the trial court. Apanovitch at ¶ 24.
{¶11} We have previously held that a postconviction
petitioner’s discovery of the former Scioto County Common Pleas
Court judge’s alleged misconduct does not constitute newly-
discovered evidence within the meaning of R.C. 2953.23. State
v. Williams, 4th Dist. Scioto No. 19CA3895, 2020-Ohio-7035. In
Williams, the petitioner, like appellant in the present case, 7 SCIOTO, 20CA3917
had been convicted in 2013, and Judge Marshall had been the
presiding judge. The petitioner filed his postconviction
petition more than five years later and asserted that he was
unavoidably prevented from discovering the facts upon which he
based his petition. In support, the petitioner referred to a
2019 news article that stated that Judge William Marshall had
been arrested for driving under the influence sometime in 2013.
We concluded that the petitioner failed to demonstrate that he
was unavoidably prevented from discovering the Judge’s alleged
problem sooner than the deadline for filing a postconviction
relief petition. We further noted that “‘[n]ewspaper articles
are generally inadmissible as evidence of the facts stated in
them.’” Id. at ¶ 13, quoting In re Waste Techs. Indus., 132
Ohio App. 3d 145, 155, 724 N.E.2d 819 (10th Dist.), citing State
v. Self, 112 Ohio App.3d 688, 694-695, 679 N.E.2d 1173 (12th
Dist.).
{¶12} Likewise, appellant in the case before us attached a
2019 news article that reported on Judge Marshall’s alleged
alcoholism and other misconduct. However, even if we were to
consider the facts contained in the news article, that news
article states that in 2013 Judge Marshall was hospitalized for
alcoholism. Appellant has not established why he was
unavoidably prevented from discovering at an earlier point in 8 SCIOTO, 20CA3917
time that Judge Marshall apparently had an alcohol problem
during the year of appellant’s conviction. Attaching a 2019
news article reporting on the earlier events does not establish
that appellant was unavoidably prevented from discovering the
existence of Judge Marshall’s alleged alcoholism so as to allow
the trial court to consider appellant’s second postconviction
relief petition.
{¶13} Moreover, even if Judge Marshall’s conduct did create
an issue of constitutional magnitude, appellant did not argue in
his petition that, but for the constitutional error at trial, no
reasonable finder of fact would have found him guilty.
{¶14} Consequently, because appellant has not established
that any exception applies, the trial court could not entertain
his second postconviction petition and lacked jurisdiction to
consider the petition. However, the trial court “technically
erred” by summarily overruling appellant’s petition rather than
dismissing it for lack of jurisdiction. State v. McManaway, 4th
Dist. Hocking No. 16CA8, 2016-Ohio-7470, ¶ 16. Under App.R.
12(A)(1)(a), we therefore modify the trial court’s judgment to
reflect the dismissal of appellant’s postconviction petition.
See State v. Daboni, 4th Dist. Meigs No. 20CA10, 2021-Ohio-3368,
¶ 22; State v. McManaway, 4th Dist. Hocking No. 16CA8, 2016-
Ohio-7470, ¶ 19. 9 SCIOTO, 20CA3917
{¶15} Accordingly, based upon the foregoing reasons, we
overrule appellant’s sole assignment of error and affirm the
trial court’s judgment as modified.
JUDGMENT AFFIRMED AS MODIFIED. 10 SCIOTO, 20CA3917
JUDGMENT ENTRY
It is ordered that the judgment be affirmed as modified.
Appellee shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Scioto County Common Pleas Court to carry
this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.