State v. Robinson , 2010 Ohio 2698 ( 2010 )

[Cite as State v. Robinson, 2010-Ohio-2698.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 09 MO 6
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
TERRY ROBINSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. CR 2006-170.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney L. Kent Riethmiller
Prosecuting Attorney
101 North Main Street, Room 15
P.O. Box 430
Woodsfield, Ohio 43793
For Defendant-Appellant: Terry Robinson, Pro se
#576-964
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: June 14, 2010
VUKOVICH, P.J.
¶{1} Defendant-appellant Terry Robinson appeals the decision of the Monroe
County Common Pleas Court denying his petition for post-conviction relief without
holding an evidentiary hearing. The issue raised in this appeal is whether the trial
court erred in determining that the petition for post-conviction relief was untimely
without holding an evidentiary hearing. For the reasons expressed below, the
judgment of the trial court denying the petition as untimely without holding an
evidentiary hearing is hereby affirmed.
STATEMENT OF THE CASE
¶{2} Robinson was indicted for aggravated possession of drugs (exceeding
bulk amount) in violation of R.C. 2925.11, a third degree felony, and possession of
drug paraphernalia in violation of R.C. 2925.14(C)(1), a fourth degree misdemeanor.
06/13/06 Indictment. The aggravated possession of drugs charge was the result of a
May 24, 2006 incident where Robinson was found with 62 pills of Percocet (throughout
the filings Percocet and Oxycodone are used interchangeably). Robinson pled guilty
to the possession of drugs charge and was sentenced to three years. 03/13/08 Plea;
04/115/08 Sentencing. Robinson did not appeal the conviction or sentence.
¶{3} On June 12, 2009, Robinson filed a petition for post-conviction relief
claiming that there was newly discovered evidence. He claimed that the newly
discovered evidence was prescription records from Rite Aid Pharmacy in Woodsfield,
Ohio showing that in July 2005 he had two prescriptions of Oxycodone filled for a total
of 90 pills. Thus, he asserted that the Oxycodone that he was charged with having in
his possession was from a legal prescription and, as such, he could not be guilty of the
offense.
¶{4} The state responded to the petition asserting that it was untimely and
that the prescription record cannot be considered newly discovered evidence per R.C.
2953.23(A)(1)(a) because he was not unavoidably prevented from discovering his own
prescription records. 06/19/09 State’s Response.
¶{5} On June 23, 2009, the trial court denied the petition for post-conviction
relief finding that it was untimely and that there was no merit with the newly discovered
evidence claim. 06/23/09 J.E.
¶{6} Robinson did not appeal that decision until October 5, 2009. However,
the appeal was deemed timely because the Clerk of Court’s docket did not contain an
indication that it was served on Robinson. 12/18/09 J.E.
ASSIGNMENT OF ERROR
¶{7} “TRIAL COURT ABUSED THEIR [SIC] DISCRETION BY FAILING TO
CONDUCT AN EVIDENTIARY HEARING UPON NEWLY DISCOVERED EVIDENCE
PURSUANT TO R.C. 2953.23.”
¶{8} As aforementioned, the trial court found that the petition was untimely
and lacked merit. The trial court did not hold an evidentiary hearing prior to making
that holding. Robinson finds fault with the trial court’s decision and the lack of an
evidentiary hearing.
¶{9} R.C. 2953.21(A)(2) states that unless otherwise provided in R.C.
2953.23, if no appeal is taken, the petition for post-conviction relief shall not be filed
later than 180 days after the expiration of the time for filing an appeal.
¶{10} R.C. 2953.23 provides:
¶{11} “(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition filed after
the expiration of the period prescribed in division (A) of that section or a second
petition or successive petitions for similar relief on behalf of a petitioner unless division
(A)(1) or (2) of this section applies:
¶{12} “(1) Both of the following apply:
¶{13} “(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must rely to present
the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, 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.
¶{14} “(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty of the offense of which the petitioner was convicted or, if the claim challenges a
sentence of death that, but for constitutional error at the sentencing hearing, no
reasonable factfinder would have found the petitioner eligible for the death sentence.”
¶{15} Clearly, the petition was filed after the time limit in R.C. 2953.21.
Therefore, the only way it could be deemed timely is if R.C. 2953.23(A)(1) is
applicable. Pursuant to that statute, the only applicable test to the arguments
presented is that Robinson was unavoidably prevented from discovering the new
evidence and presented clear and convincing evidence that if a reasonable factfinder
had considered the newly discovered evidence, he would not have been found guilty.
¶{16} Starting with the first prong of that test, Robinson argued in the petition
and argues in this appeal that he was unavoidably prevented from discovering the
Woodsfield Rite Aid Pharmacy’s records that he claims entitles him to relief. We find
no merit with his argument. As the state points out, it is Robinson’s own medical
records he is claiming to have been unavoidably prevented from discovering. His
position is illogical. He was and is in the best position to know his medical history and
whether he had a legal prescription for Percocet/Oxycodone at the time he was
arrested and indicted.
¶{17} However, even if it could be concluded that he could have somehow
been prevented from discovering his own pharmacy records, such a claim is not
supported by the record. In preparing for trial, the state deposed Sandra Poole. She
was Robinson’s girlfriend and was with him when he was arrested. Her testimony
explained that she was with Robinson when he purchased Percocet/Oxycodone from
Robin McLester and that his last purchase before the May 24, 2006 arrest was a
couple days prior to that. (Tr. 17-18). In her testimony, Poole discussed the fact that
Robinson did have legal prescriptions for Percocet/Oxycodone. On both direct and
cross examination, she explained that he had prescriptions filled at many locations and
one of those locations that she testified about was Rite Aid Pharmacy in Woodsfield.
(Tr. 32, 41). Given the information that was provided during her testimony, it is clear
that Robinson, if not already aware, was put on notice that he had prescriptions filled
at many locations including the Rite Aid Pharmacy in Woodsfield. Thus, considering
that the information was available for him to look into prior to entering his plea, he
cannot claim that he was unavoidably prevented from discovering the prescriptions
filled in 2005 at the Rite Aid Pharmacy in Woodsfield.
¶{18} Therefore, for those reasons, the trial court correctly determined that
there was no merit with Robinson’s claim of newly discovered evidence. Or in other
words, Robinson failed to meet the first prong under R.C. 2953.23(A) that he was
“unavoidably prevented” from discovering the alleged new evidence.
¶{19} Furthermore, due to the untimeliness of the petition, by the clear
language of R.C. 2953.23, the trial court was not permitted to entertain the petition.
Thus, it was not required to hold an evidentiary hearing. State v. Foster, 10th Dist. No.
09AP-227, 2009-Ohio-5202, ¶8.
¶{20} Having disposed of the argument concerning newly discovered evidence,
we note that in the appellate brief in addition to arguing that the trial court should have
had a hearing on his contention that there was new evidence, Robinson asserts that
counsel was ineffective for failing to obtain the prescription record from Rite Aid (the
new evidence). He claims to have made this ineffective assistance of counsel
argument to the trial court in his petition for post-conviction relief.
¶{21} While the argument of newly discovered evidence was clearly made in
the post-conviction petition, that petition does not contain an argument that counsel
was ineffective for failing to discover the evidence. Since this argument was not raised
to the trial court, it will not be addressed by this court; new arguments will not be
considered for the first time on appeal. State v. Garrett, 7th Dist. No. 06BE67, 2007-
Ohio-7212, ¶8. See, also, State v. Zamora, 3d Dist. No. 11-08-04, 2008-Ohio-4410,
¶26 (stating that an appellate court can only address those arguments presented to
the trial court in the original petition for post-conviction relief. Therefore, any new
arguments cannot be considered for the first time on appeal.) State v. Sheets, 4th
Dist. No. 03CA24, 2005-Ohio-803, ¶29; State v. Bandell (Apr. 9, 1997), 9th Dist. No.
96CA006524. In conclusion, appellant’s sole assignment of error lacks merit.
¶{22} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.