State v. Young

2012 Ohio 965

• Court: Ohio Court of Appeals
• Decided: March 9, 2012
• Docket: 24738
• Status: Published

Opinion

[Cite as State v. Young, 2012-Ohio-965.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24738

vs. : T.C. CASE NO. 99CR3914

JEREMIAH YOUNG : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 9th day of March, 2012.

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422

Attorneys for Plaintiff-Appellee

Jeremiah Young, #393-844, Marion Corr. Inst., P.O. Box 57, Marion, OH 43301-0057 Defendant-Appellant, Pro Se

GRADY, P.J.:

{¶ 1} Defendant, Jeremiah Young, appeals from a final judgment dismissing his

petition for postconviction relief.

{¶ 2} In April of 2000, Defendant was found guilty by a jury of eight counts of

forcible rape of a child under thirteen and two counts of felonious sexual penetration. The 2

trial court sentenced Defendant to five consecutive life terms. The evidence is summarized

in our opinion affirming Defendant’s conviction and sentence on direct appeal. State v.

Young, 2d Dist. Montgomery No. 18365, 2001 WL 43111 (Jan. 19, 2001).

{¶ 3} On May 18, 2011, Defendant filed a “Petition to Vacate a Void or Voidable

Conviction and Judgment,” alleging several constitutional violations. Despite what

Defendant called it, this was necessarily a petition for postconviction relief pursuant to R.C.

2953.21. See: State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997).

{¶ 4} On July 1, 2011, the trial court summarily denied Defendant’s petition for

postconviction relief without a hearing. The court concluded that Defendant’s petition was

both untimely and constituted a second, successive postconviction petition. Because

Defendant failed to demonstrate any of the exceptions in R.C. 2953.23(A)(1), the court found

that it lacked jurisdiction to consider the merits of Defendant’s postconviction petition. The

court further found that, in any event, all of Defendant’s claims for relief were barred by res

judicata because they concern matters contained in the trial record and therefore they could

have been raised on direct appeal from Defendant’s conviction. State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967).

{¶ 5} Defendant timely appealed to this court from the trial court’s decision

dismissing his petition for postconviction relief.

CLAIM NO. ONE:

{¶ 6} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

IN VIOLATION OF HIS FIRST AMENDMENT OF U.S. CONSTITUTION, WHEN THE

COURT IMPANELED AN ILLEGAL JURY. 3

CLAIM NO. TWO:

{¶ 7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

IN VIOLATION OF HIS FOURTH AMENDMENT RIGHT TO BE FREE FROM ILLEGAL

SEIZURE OF A PERSON AND PROPERTIES.”

CLAIM NO. THREE:

{¶ 8} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

VIOLATING HIS FIFTH AMENDMENT RIGHT WHEN THEY USE A SHAM LEGAL

PROCESS.”

CLAIM NO. FOUR:

{¶ 9} “THE COUNSEL WAS NOT EFFECTIVE, AND HAD BEEN COUNSEL AS

GUARANTEED UNDER THE SIXTH AMENDMENT THE OUTCOME OF THE WHOLE

PROCEEDING WOULD HAVE DIFFERENT.”

CLAIM NO. FIVE:

{¶ 10} “THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT

IN VIOLATION OF HIS EIGHTH AMENDMENT WHEN HE WAS WRONGFULLY

IMPRISONED.”

CLAIM NO. SIX:

{¶ 11} “THE CUMULATIVE EFFECT OF CLAIMS ONE THRU FIVE DENIED

APPELLANT HIS DUE PROCESS IN VIOLATION OF HIS FOURTEENTH

AMENDMENT OF THE U.S. CONSTITUTION.”

CLAIM NO. SEVEN:

{¶ 12} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN 4

VIOLATION OF THE DUE PROCESS OF THE FOURTEENTH AMENDMENT OF THE

U.S. CONSTITUTION WHEN APPELLANT WAS CONVICTED AND SENTENCED

WITHOUT ANY BIOLOGICAL EVIDENCE.”

{¶ 13} In State v. Reese, 2d Dist. Montgomery No. 23410, 2009-Ohio-5874 at ¶ 5-7,

we stated:

Judicial decisions are best rendered on the narrowest basis available.

Applying that rule, we find, as the trial court did, that Defendant's petition is

barred because it was not timely filed.

When a direct appeal is taken from a criminal conviction, a petition for

postconviction relief must be filed no later than one hundred and eighty days

after the date on which the trial transcript was filed in the court of appeals.

R.C. 2953.21(A)(2). Defendant filed a direct appeal from his convictions. The

transcript of his trial proceedings was filed on February 3, 2004. The petition

Defendant filed on February 11, 2009, five years later, was clearly untimely.

The time bar imposed by R.C. 2953.21(A) is jurisdictional. State v.

Harden, Montgomery App. No. 20803, 2005-Ohio-5580. In order to confer

jurisdiction on the common pleas court to consider an untimely petition, the

petitioner must make at least one of two alternative showings: that he “was

unavoidably prevented from discovering the facts upon which the petition must

rely to present the claim for relief, or, subsequent to [the filing deadline] 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 5

asserts a claim based on that right.” R.C. 2953.23(A)(1)(a).

{¶ 14} Defendant filed a direct appeal from his conviction, Case No. 18365. The

transcript of the trial proceedings was filed in Defendant’s appeal on July 12,2000. The

petition for postconviction relief Defendant filed on May 18, 2011, over ten years later, is

obviously untimely. Furthermore, Defendant does not even claim, much less demonstrate in

his petition, that either of the exceptions in R.C. 2953.23(A)(1)(a) applies in this case: that he

was prevented from discovering the facts upon which his claim for relief relies, or that a new

federal or state right recognized by the U.S. Supreme Court and upon which he relies for relief

applies retroactively to his case. Accordingly, the trial court correctly found that it lacked

jurisdiction to consider the merits of Defendant’s untimely petition and properly dismissed it.

R.C. 2953.23(A); Harden, 2005-Ohio-5580; State v. Hansbro, 2d Dist Clark No. 2001CA88

(June 14, 2002).

{¶ 15} Defendant’s assignments of error are overruled. The judgment of the trial

court will be affirmed.

FAIN, J., And FROELICH, J., concur.

Copies mailed to:

Carley J. Ingram, Esq. Jeremiah Young Hon. Mary Wiseman