State v. Ushery

2022 Ohio 1695

• Court: Ohio Court of Appeals
• Decided: May 20, 2022
• Docket: 2021-CA-28
• Status: Published

Opinion

[Cite as State v. Ushery, 2022-Ohio-1695.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2021-CA-28 : v. : Trial Court Case No. 2006-CR-555 : DANIEL L. USHERY, JR. : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 20th day of May, 2022.

PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami County Prosecutor’s Office, Appellate Division, Safety Building, 201 West Main Street, 2nd Floor, Troy, Ohio 45373 Attorney for Plaintiff-Appellee

DANIEL L. USHERY, JR., #16214-032, FCC USP 1, P.O. Box 1033, Coleman, Florida 33521 Defendant-Appellant, Pro Se

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LEWIS, J. -2-

{¶ 1} Defendant-Appellant Daniel L. Ushery, Jr. appeals from the judgment of the

Miami County Court of Common Pleas denying his motion for a writ of error coram nobis.

For the following reasons, the trial court’s judgment is affirmed.

I. Procedural History and Facts

{¶ 2} In January 2007, Ushery was charged by way of bill of information in the

Miami County Common Pleas Court with one count of trafficking in drugs, a felony of the

second degree, and one count of illegal conveyance of drugs of abuse, a felony of the

third degree, for an offense alleged to have occurred in November 2006. Ushery agreed

to plead guilty to one count of trafficking in drugs in exchange for a jointly-recommended

mandatory minimum sentence of two years in prison and dismissal of the illegal

conveyance charge. Pursuant to the negotiated plea agreement, Ushery was sentenced

to a mandatory prison term of two years. He did not file a direct appeal from his

conviction.

{¶ 3} In 2013, Ushery entered a negotiated guilty plea to one count of distribution

of crack cocaine in the United States District Court for the Eastern District of Kentucky.

United States v. Ushery, 785 F.3d 210 (6th Cir.2015). Partly as a result of being deemed

a career offender, Ushery was sentenced to 252 months in prison. Id. at 224. Ushery

appealed and the Sixth Circuit affirmed Ushery’s conviction. Id. at 225.

{¶ 4} In 2016, Ushery filed a post-sentence motion to withdraw his guilty plea in

the 2006 Miami County drug trafficking case. Ushery alleged that his attorney had been

ineffective because he had not properly advised Ushery of all his possible defenses or of

the requirement that the State would have to prove his guilt on every element beyond a -3-

reasonable doubt if he had gone to trial. He further claimed that he had not actually

committed the offense of trafficking in drugs because he only possessed them and,

therefore, he would have been found not guilty had he gone to trial. Ushery maintained

that he would have gone to trial or had a suppression hearing had he known of the

possible defenses he could have raised.

{¶ 5} While the motion to withdraw his guilty plea was pending, Ushery filed a

Motion to Amend Charge; Motion to Appoint Counsel, also in his 2006 Miami County drug

trafficking case. Ushery claimed that because he did not actually commit the offense of

trafficking in drugs, only illegal conveyance of drugs, the trial court should amend his

conviction from trafficking in drugs to illegal conveyance of drugs and resentence him to

time served. Ushery also alleged that he had not been aware of all his rights when he

pled guilty or that he could have been found guilty of a lesser charge.

{¶ 6} On April 13, 2016, the trial court denied both of Ushery’s motions in their

entirety. The trial court found that the plea form Ushery had signed belied his allegations.

Specifically, the plea form stated that Ushery understood the nature of the charges

against him and the possible defenses he might have, that he was satisfied with his

attorney, that he understood he was giving up all his constitutional rights, and that he

waived his right to have the prosecutor prove his guilt beyond a reasonable doubt by

entering a guilty plea. The trial court also could not find a legal basis under which it could

amend the charges as Ushery requested. Ushery did not appeal from this judgment.

{¶ 7} On June 10, 2021, Ushery filed another motion in the 2006 Miami County

drug trafficking case requesting the trial court issue a writ of error coram nobis and vacate -4-

his conviction. According to Ushery, he was being unlawfully held in federal prison as a

result of having been convicted in his federal criminal case in which his state conviction

enhanced his federal sentence. As such, he requested that his state court conviction be

set aside primarily on the basis that his attorney had been ineffective in getting him to

plead guilty to an offense he did not commit. Ushery claimed that he had only recently

learned that he had a possible defense or argument for a lesser-included offense of drug

possession when he arrived at federal prison and another inmate reviewed his case. In

support of his motion, Ushery attached an “affidavit” of the inmate who helped discover

the alleged errors and a “declaration” from Ushery in support of his motion.

{¶ 8} On July 28, 2021, the trial court denied Ushery’s motion. Initially, the trial

court reiterated the reasons given in its April 13, 2016 decision denying Ushery’s 2016

motions. The trial court also stated that Ushery could have argued the issues he raised

in a direct appeal and/or a petition for post-conviction relief, that the time for filing a petition

for post-conviction relief had long passed, and that awareness of one’s legal rights did

not constitute newly-discovered evidence, but was merely newly-discovered knowledge

of the law. Finally, the trial court noted that Ushery sought legal relief that was not

cognizable under Ohio law.

{¶ 9} Ushery appealed.

II. Non-compliance with Appellate Rule 16

{¶ 10} Instead of filing a brief, Ushery initially filed a petition for post-conviction

relief in this Court. We overruled his petition because a petition for post-conviction relief

must first be filed in the trial court. We ordered Ushery to show cause as to why this -5-

Court should not dismiss his appeal for failing to timely file an appellate brief. In

response, he filed a document titled “Reply to Show Cause Order; Brief of Appellant for

Habeas Relief.”

{¶ 11} Ushery’s pro se brief asks this Court to grant his motion for writ of error

coram nobis and to grant a writ of habeas corpus. Unfortunately, Ushery’s pro se “brief”

does not comply with App.R. 16. App.R. 16(A)(1)-(8). “Pro se litigants are held to the

same procedures and standards as parties who obtain counsel, and we may disregard

briefs that fail to comply with App.R. 16(A).” City of Kettering v. Fritz, 2d Dist.

Montgomery No. 28319, 2019-Ohio-3388, ¶ 6.

{¶ 12} Ushery’s brief does not include a table of cases, statutes, or any other

authority. App.R. 16(A)(1) and (2). His brief does not identify a statement of the

assignments of error presented for review with reference to the place in the record where

each error is reflected. App.R. 16(A)(3). Ushery’s brief does not include a statement of

the issues presented for review, a brief statement of the case, or a statement of facts

relevant to the assignments of error. App.R. 16(A)(4)-(6). Not only are there no

assignments of error identified, but there are no arguments “containing the contentions of

the appellant with respect to each assignment of error presented for review and the

reasons in support of the contentions, with citations to the authorities, statutes, and parts

of the record on which appellant relies.” App.R. 16(A)(7).

{¶ 13} Ushery has wholly failed to set forth any assignment of error or cite any

specific place in the trial court's record where any of the errors are alleged to have

occurred. Pursuant to App.R. 12(A)(2), this Court is not required to consider any issues -6-

that are not separately argued as assignments of error. Such deficiencies permit this

Court to dismiss Ushery’s appeal. Holfinger v. Stonespring/Carespring, L.L.C., 2d Dist.

Montgomery No. 27091, 2016-Ohio-7982, ¶ 27-31; Hawley v. Ritley, 35 Ohio St.3d 157,

159, 519 N.E.2d 390 (1988). Notwithstanding the obvious omissions in Ushery’s brief,

and in the interests of justice and finality, we elect to review what we interpret is the issue

raised in Ushery’s appeal rather than striking the brief or summarily dismissing the appeal.

III. The Trial Court Did Not Err in Denying Ushery’s Motion

{¶ 14} This appeal stems from the trial court’s denial of Ushery’s request for the

trial court to issue a writ of error coram nobis. As such, we construe the error on appeal

to be that the trial court erred in denying Ushery’s motion. Having reviewed the record,

we find no error in the trial court’s decision.

{¶ 15} To the extent the trial court denied Ushery’s request for a writ of error coram

nobis, the trial court correctly determined it could not grant Ushery the relief he requested.

“Writs of coram nobis were at one time filed in a court that had rendered a judgment to

bring to the court's attention errors of fact which, through duress, fraud, or excusable

neglect, were unknown when the judgment was entered and which would have prevented

the judgment had they then been known to the court.” State v. Spezzalli, 2d Dist. Clark

No. 1997-CA-127, 1998 WL 771408, *1 (Sept. 25, 1998). The common-law writ of coram

nobis is no longer part of the law of Ohio as the enactment of other post-conviction

remedies have replaced it. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967), citing State v. Hayslip, 90 Ohio St. 199, 170 N.E. 335 (1914). Because Ohio

does not recognize a writ of coram nobis, the trial court did not err by denying Ushery’s -7-

motion.

{¶ 16} In as much as the trial court treated Ushery’s motion as a petition for post-

conviction relief, we also find that the trial court did not err in denying it as untimely.

“Courts may recast irregular motions into whatever category necessary to identify and

establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio

St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12, citing State v. Bush, 96 Ohio St.3d 235,

2002-Ohio-3993, 773 N.E.2d 522, ¶ 10. (Other citation omitted.) Where a criminal

defendant files a motion subsequent to a direct appeal seeking to render the judgment of

conviction void in order to vacate the judgment and sentence on the basis that the

defendant’s constitutional rights were violated, the motion is properly construed as a

petition for post-conviction relief. State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d

1131 (1997).

{¶ 17} In this case, Ushery’s motion was filed after the time for direct appeal had

expired, and he sought vacation of his conviction on grounds that his constitutional rights

had been violated. Therefore, Ushery’s motion satisfied all the criteria for it to properly

be construed as a petition for post-conviction relief.

{¶ 18} A petition for “postconviction relief is a means by which the petitioner may

present constitutional issues to the court that would otherwise be impossible to review

because the evidence supporting those issues is not contained in the record of the

petitioner's criminal conviction.” (Citations omitted.) State v. Monroe, 2015-Ohio-844, 29

N.E.3d 391, ¶ 37 (10th Dist.). A post-conviction relief proceeding is not an appeal of a

criminal conviction but a collateral civil attack on a criminal judgment. Id. R.C. 2953.21, -8-

the statute governing post-conviction relief, permits “[a]ny person who has been convicted

of a criminal offense * * * who claims that 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 States * * * [to] file a petition in the court that imposed

sentence, stating the grounds for relief relied upon, and asking the court to vacate or set

aside the judgment or sentence or to grant other appropriate relief.” R.C.

2953.21(A)(1)(a) and (A)(1)(a)(i). The petitioner may file a supporting affidavit and other

documentary evidence in support of the claim for relief. R.C. 2953.21(A)(1)(b).

{¶ 19} When no direct appeal is taken, the post-conviction petition statute provides

that the petition shall be filed no later than 365 days after the expiration of the time for

filing an appeal. R.C. 2953.21(A)(2)(a). “R.C. 2953.23(A) permits a prisoner to file an

untimely * * * petition for postconviction relief only under specific, limited circumstances.”

State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 22.

“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). -9-

{¶ 20} “We review trial court decisions on petitions for post-conviction relief under

an abuse of discretion standard.” (Citations omitted.) State v. Perkins, 2d Dist.

Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. An abuse of discretion connotes that

the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 21} Ushery’s petition was not filed within the time limitations set forth in R.C.

2953.21(A)(2). He was convicted and sentenced in 2007 but did not file his petition until

2021, over 14 years later. Therefore, in order for the trial court to have jurisdiction to

consider the petition, Ushery was required to demonstrate that he had been unavoidably

prevented from discovering the facts upon which the claims in his petition were based, or

that a new federal or state right applied retroactively to his case.

{¶ 22} Ushery did not make any claim based on a new federal or state right

recognized by the United States Supreme Court that could be retroactively applied to his

case. Consequently, Ushery had to show that he was unavoidably prevented from

discovering the facts necessary to bring the petition. “The phrase ‘unavoidably

prevented’ means that a defendant was unaware of those facts and was unable to learn

of them through reasonable diligence.” State v. McDonald, 6th Dist. Erie No. E-04-009,

2005-Ohio-798, ¶ 19. As an explanation for his untimeliness, Ushery claimed that he

only recently learned from a fellow federal inmate that he could not have been convicted

of trafficking in drugs based on the underlying facts of his offense since he only possessed

the drugs and that he could have argued for a lesser-included offense of possession of

drugs had he gone to trial. -10-

{¶ 23} The discovery of “facts” contemplated by R.C. 2953.23(A)(1)(a) “are the

historical facts of the case, which occurred up to and including the time of conviction.”

State v. Turner, 10th Dist. Franklin No. 06AP-876, 2007-Ohio-1468, citing State v.

Czaplicki, 2d Dist. Montgomery No. 16589, 1998 WL 272034, *3 (May 29, 1998). The

post-conviction statute requires that a petitioner be unavoidably prevented from

discovering facts, not the law. State v. Clay, 2018-Ohio-985, 108 N.E.3d 642, ¶ 12 (7th

Dist.). “The purpose behind R.C. 2953.23 is to ‘permit trial courts to consider factual

information that may come to light after a defendant's trial, not to permit defendants to

advance new legal theories using the same underlying facts.’ ” State v. Williamitis, 2d

Dist. Montgomery No. 21321, 2006-Ohio-2904, ¶ 18, citing State v. Hurst, 5th Dist. Stark

No. 1999CA00171, 2000 WL 93990 (Jan. 10, 2000).

{¶ 24} In this case, Ushery was aware of all the facts he identified in his motion at

the time he pled guilty and, therefore, could not have been unavoidably prevented from

learning those facts. Moreover, Ushery made the same legal claims in his 2016 motions

that he alleged were newly discovered in 2021. Accordingly, because Ushery did not

make the requisite showing under R.C. 2953.23(A)(1), the trial court lacked jurisdiction to

consider Ushery’s untimely petition for post-conviction relief and correctly denied it.

IV. Habeas Relief

{¶ 25} As to Ushery’s request for habeas relief in this Court, it is not properly before

us. He did not raise it in the trial court and, therefore, may not now raise it for the first

time on appeal. “It is settled law that issues raised for the first time on appeal and not

having been raised in the trial court are not properly before this court and will not be -11-

addressed.” State v. Schneider, 2d Dist. Greene No. 1995-CA-18, 1995 WL 737910, *1

(Dec. 13, 1995), citing State v. Coleman, 37 Ohio St.3d 286, 294, 525 N.E.2d 792 (1988).

(Other citation omitted.) Moreover, Ushery is currently held on a federal charge in

federal prison. “State courts lack jurisdiction to determine a habeas corpus petition filed

by an inmate of a federal prison.” Perotti v. Stine, 113 Ohio St. 3d 312, 2007-Ohio-1957,

865 N.E.2d 50, ¶ 5. As a result, even if this issue were properly before us, we could not

grant him the relief he seeks.

V. Conclusion

{¶ 26} Having found no errors, the judgment of the trial court is affirmed.

WELBAUM, J. and EPLEY, J., concur.

Copies sent to:

Paul M. Watkins Daniel L. Ushery, Jr. Hon. Stacy M. Wall