[Cite as State v. Murillo, 2014-Ohio-2097.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
ANDRES SOLA MURILLO
Defendant-Appellant
Appellate Case No. 25958
Trial Court Case No. 2001-CR-4297
(Criminal Appeal from (Common Pleas Court) ...........
OPINION
Rendered on the 16th day of May, 2014.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ANDRES SOLA MURILLO, Inmate No. 425-148, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant-Pro Se
.............
WELBAUM, J. 2
{¶ 1} Defendant-appellant, Andres Sola Murillo, appeals pro se from the decision
of the Montgomery County Court of Common Pleas denying his petition for postconviction
relief. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On October 18, 2001, Andres Sola Murillo was indicted on one count of
aggravated burglary. While out on bond, Murillo stabbed his wife to death and was
subsequently indicted for her murder. After pleading guilty to both charges, the trial court
sentenced Murillo to serve 15 years to life in prison for the murder and a concurrent 10-year
prison term for the aggravated burglary. Murillo did not file a direct appeal from his conviction
or sentence. However, he has filed several post-sentence motions in the trial court, two of which
were subject of appeals in this court. See State v. Murillo, 2d Dist. Montgomery No. 21919,
2008-Ohio-201 (affirming the trial court’s decision to overrule Murillo’s motion to enjoin
collection of court costs); State v. Murillo, 2d Dist. Montgomery No. 22226, 2009-Ohio-2325
(affirming the trial court’s decision to overrule Murillo’s motion to withdraw guilty plea).
{¶ 3} On June 5, 2013, Murillo filed a petition for postconviction relief arguing that the
State failed to disclose exculpatory evidence and thus violated his constitutional right to due
process. Specifically, Murillo claimed that the State failed to disclose photographs taken of him
at the time of his arrest, which depict a stab wound on his chest that was allegedly caused by his
wife. According to Murillo, the photographic evidence was exculpatory because it supported his
theory of self-defense. The trial court, however, denied Murillo’s petition on grounds that he
provided no evidentiary support for his claim that the State withheld the photographs. The court 3
also held that his petition was untimely.
{¶ 4} Murillo now appeals from the trial court’s decision denying his petition for
postconviction relief, raising one assignment of error.
Assignment of Error
{¶ 5} Murillo’s sole assignment of error is as follows:
THE PROSECUTION CREATED A BRADY VIOLATION WHEN IT FAILED,
AND HAS STILL FAILED, TO PROVIDE PETITIONER COPIES OF THE
PHOTOGRAPHS TAKEN BY THE SHERIFF’S OFFICE.
{¶ 6} Under this assignment of error, Murillo raises the same arguments that he
asserted in his petition for postconviction relief regarding the State’s alleged failure to disclose
exculpatory photographic evidence. In turn, while not specifically stated in Murillo’s appellate
brief, we construe his single assignment of error as arguing that the trial court erred in denying
his petition for postconviction relief.
{¶ 7} “Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C.
2953.23. Under these statutes, any defendant who has been convicted of a criminal offense and
who claims to have experienced a denial or infringement of his or her constitutional rights may
petition the trial court to vacate or set aside the judgment and sentence.” State v. Bell, 2d Dist.
Montgomery No. 25729, 2014-Ohio-49, ¶ 8, citing R.C. 2953.21(A). An appellate court reviews
a trial court’s denial of a petition for postconviction relief under an abuse of discretion standard.
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” 4
(Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶
34.
{¶ 8} In addressing a petition for postconviction relief, a trial court plays a gatekeeping
role as to whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss
a petition for postconviction relief without a hearing “where the petition, the supporting
affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner
set forth sufficient operative facts to establish substantive grounds for relief.” State v. Calhoun,
86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus; Gondor at ¶ 51.
{¶ 9} Affidavits may be submitted in support of postconviction relief motions. R.C.
2953.21. “However, not all affidavits accompanying a postconviction relief petition demonstrate
entitlement to an evidentiary hearing, even assuming the truthfulness of their contents.”
Calhoun at 284. “[W]here a petitioner relies upon affidavit testimony as the basis of entitlement
to postconviction relief, and the information in the affidavit, even if true, does not rise to the level
of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is
inconsequential.” (Citation omitted.) Id.
{¶ 10} In the present case, Murillo’s petition for postconviction relief failed to set forth
sufficient operative facts to establish substantive grounds for relief. Other than a self-serving
affidavit, Murillo failed to provide any evidentiary documents supporting his claim that
exculpatory photographs were withheld from him and that this caused him to be wrongly
convicted.
{¶ 11} Moreover, even if Murillo had set forth sufficient facts, Murillo’s petition was
untimely. It is well-established that “if no direct appeal is taken, a petition for post-conviction 5
relief generally must be filed no later than one hundred eighty days after the expiration of the
time for filing the appeal.” State v. Cooks, 2d Dist. Montgomery No. 25592, 2014-Ohio-1103, ¶
18, citing R.C. 2953.21(A)(2). “Trial courts lack jurisdiction to consider an untimely petition
for post-conviction relief, unless the untimeliness is excused under R.C. 2953.23(A).” (Citations
omitted.) State v. Current, 2d Dist. Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 16.
{¶ 12} Here, Murillo did not file a direct appeal from his conviction; therefore, the
180-day time limitation for filing a petition for postconviction relief began to run after the time
for filing an appeal had expired, which in this case was April 7, 2002. Murillo, however, did not
file his petition until June 5, 2013, well over ten years after the expiration of the 180-day filing
deadline.
{¶ 13} Murillo also failed to demonstrate that he was permitted to file an untimely
petition as permitted by R.C. 2953.23(A)(1). Pursuant to R.C. 2953.23(A)(1)(a), a defendant
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[Cite as State v. Murillo, 2014-Ohio-2097.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
ANDRES SOLA MURILLO
Defendant-Appellant
Appellate Case No. 25958
Trial Court Case No. 2001-CR-4297
(Criminal Appeal from (Common Pleas Court) ...........
OPINION
Rendered on the 16th day of May, 2014.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ANDRES SOLA MURILLO, Inmate No. 425-148, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant-Pro Se
.............
WELBAUM, J. 2
{¶ 1} Defendant-appellant, Andres Sola Murillo, appeals pro se from the decision
of the Montgomery County Court of Common Pleas denying his petition for postconviction
relief. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On October 18, 2001, Andres Sola Murillo was indicted on one count of
aggravated burglary. While out on bond, Murillo stabbed his wife to death and was
subsequently indicted for her murder. After pleading guilty to both charges, the trial court
sentenced Murillo to serve 15 years to life in prison for the murder and a concurrent 10-year
prison term for the aggravated burglary. Murillo did not file a direct appeal from his conviction
or sentence. However, he has filed several post-sentence motions in the trial court, two of which
were subject of appeals in this court. See State v. Murillo, 2d Dist. Montgomery No. 21919,
2008-Ohio-201 (affirming the trial court’s decision to overrule Murillo’s motion to enjoin
collection of court costs); State v. Murillo, 2d Dist. Montgomery No. 22226, 2009-Ohio-2325
(affirming the trial court’s decision to overrule Murillo’s motion to withdraw guilty plea).
{¶ 3} On June 5, 2013, Murillo filed a petition for postconviction relief arguing that the
State failed to disclose exculpatory evidence and thus violated his constitutional right to due
process. Specifically, Murillo claimed that the State failed to disclose photographs taken of him
at the time of his arrest, which depict a stab wound on his chest that was allegedly caused by his
wife. According to Murillo, the photographic evidence was exculpatory because it supported his
theory of self-defense. The trial court, however, denied Murillo’s petition on grounds that he
provided no evidentiary support for his claim that the State withheld the photographs. The court 3
also held that his petition was untimely.
{¶ 4} Murillo now appeals from the trial court’s decision denying his petition for
postconviction relief, raising one assignment of error.
Assignment of Error
{¶ 5} Murillo’s sole assignment of error is as follows:
THE PROSECUTION CREATED A BRADY VIOLATION WHEN IT FAILED,
AND HAS STILL FAILED, TO PROVIDE PETITIONER COPIES OF THE
PHOTOGRAPHS TAKEN BY THE SHERIFF’S OFFICE.
{¶ 6} Under this assignment of error, Murillo raises the same arguments that he
asserted in his petition for postconviction relief regarding the State’s alleged failure to disclose
exculpatory photographic evidence. In turn, while not specifically stated in Murillo’s appellate
brief, we construe his single assignment of error as arguing that the trial court erred in denying
his petition for postconviction relief.
{¶ 7} “Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C.
2953.23. Under these statutes, any defendant who has been convicted of a criminal offense and
who claims to have experienced a denial or infringement of his or her constitutional rights may
petition the trial court to vacate or set aside the judgment and sentence.” State v. Bell, 2d Dist.
Montgomery No. 25729, 2014-Ohio-49, ¶ 8, citing R.C. 2953.21(A). An appellate court reviews
a trial court’s denial of a petition for postconviction relief under an abuse of discretion standard.
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” 4
(Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶
34.
{¶ 8} In addressing a petition for postconviction relief, a trial court plays a gatekeeping
role as to whether a defendant will receive a hearing. Gondor at ¶ 51. A trial court may dismiss
a petition for postconviction relief without a hearing “where the petition, the supporting
affidavits, the documentary evidence, the files, and the records do not demonstrate that petitioner
set forth sufficient operative facts to establish substantive grounds for relief.” State v. Calhoun,
86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus; Gondor at ¶ 51.
{¶ 9} Affidavits may be submitted in support of postconviction relief motions. R.C.
2953.21. “However, not all affidavits accompanying a postconviction relief petition demonstrate
entitlement to an evidentiary hearing, even assuming the truthfulness of their contents.”
Calhoun at 284. “[W]here a petitioner relies upon affidavit testimony as the basis of entitlement
to postconviction relief, and the information in the affidavit, even if true, does not rise to the level
of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is
inconsequential.” (Citation omitted.) Id.
{¶ 10} In the present case, Murillo’s petition for postconviction relief failed to set forth
sufficient operative facts to establish substantive grounds for relief. Other than a self-serving
affidavit, Murillo failed to provide any evidentiary documents supporting his claim that
exculpatory photographs were withheld from him and that this caused him to be wrongly
convicted.
{¶ 11} Moreover, even if Murillo had set forth sufficient facts, Murillo’s petition was
untimely. It is well-established that “if no direct appeal is taken, a petition for post-conviction 5
relief generally must be filed no later than one hundred eighty days after the expiration of the
time for filing the appeal.” State v. Cooks, 2d Dist. Montgomery No. 25592, 2014-Ohio-1103, ¶
18, citing R.C. 2953.21(A)(2). “Trial courts lack jurisdiction to consider an untimely petition
for post-conviction relief, unless the untimeliness is excused under R.C. 2953.23(A).” (Citations
omitted.) State v. Current, 2d Dist. Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 16.
{¶ 12} Here, Murillo did not file a direct appeal from his conviction; therefore, the
180-day time limitation for filing a petition for postconviction relief began to run after the time
for filing an appeal had expired, which in this case was April 7, 2002. Murillo, however, did not
file his petition until June 5, 2013, well over ten years after the expiration of the 180-day filing
deadline.
{¶ 13} Murillo also failed to demonstrate that he was permitted to file an untimely
petition as permitted by R.C. 2953.23(A)(1). Pursuant to R.C. 2953.23(A)(1)(a), a defendant
may file an untimely petition for postconviction relief if: (1) he was unavoidably prevented from
discovering the facts upon which he relies to present his claim; or (2) the United States Supreme
Court recognizes a new federal or state right that applies retroactively to his situation and the
petition asserts a claim based on that right. In addition, the petitioner must show by clear and
convincing evidence that, if not for the constitutional error from which he suffered, no reasonable
factfinder could have found him guilty. R.C. 2953.23(A)(1)(b).
{¶ 14} In this case, Murillo did not allege that he was unavoidably prevented from
discovering the photographs that were allegedly withheld by the State. In fact, the affidavit
attached with Murillo’s petition states that photographs were taken of his stab wound by the
Sheriff’s office when he was arrested. He was, therefore, well aware of the photographs as of 6
the date of his arrest and cannot claim that he was unavoidably prevented from discovering them.
Murillo also did not argue in his petition that the United States Supreme Court has recognized a
new federal or state right that applies retroactively to him, nor have we found any case law that
would support such a position. Therefore, because he failed to establish either condition under
R.C. 2953.23(A)(1)(a), the trial court did not have jurisdiction to consider Murillo’s untimely
petition.
{¶ 15} For the foregoing reasons, we conclude that the trial court did not abuse its
discretion in denying Murillo’s petition for postconiviction relief. The petition was untimely
and failed to provide sufficient operative facts to establish substantive grounds for relief.
Murillo’s sole assignment of error is overruled.
Conclusion
{¶ 16} Having overruled Murillo’s sole assignment of error, the judgment of the trial
court is affirmed.
FROELICH, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck Kirsten A. Brandt Andres Sola Murillo Hon. Barbara P. Gorman