State v. Thomas ( 2011 )

[Cite as State v. Thomas, 2011-Ohio-2542.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95754
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
OLIVER L. THOMAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-519480
BEFORE: Stewart, P.J., Sweeney, J., and Jones, J.
RELEASED AND JOURNALIZED: May 26, 2011
FOR APPELLANT
Oliver L. Thomas, Pro Se
Inmate No. 571-936
Grafton Correctional Institution
2500 South Avon Beldon Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶ 1} Defendant-appellant, Oliver L. Thomas, appeals from a court
order that granted the state of Ohio summary judgment on his second
petition for postconviction relief. The court granted summary judgment on
jurisdictional grounds, finding that Thomas failed to establish that he had
been unavoidably prevented from discovering the facts forming the basis for
the claims in the second petition. His two assignments of error challenge the
court’s dismissal.
{¶ 2} In July 2009, Thomas pleaded guilty to five counts of gross sexual
imposition and received concurrent five-year sentences. He did not file a
direct appeal, but instead filed two separate motions to withdraw his guilty
plea, one of which claimed that he had been denied the effective assistance of
counsel. The court denied both motions.
{¶ 3} In December 2009, Thomas filed a petition for postconviction
relief on grounds that he had been denied the effective assistance of counsel
during the plea proceedings. The court granted summary judgment to the
state on Thomas’s petition, finding that Thomas failed to offer evidence to
substantiate how counsel had been ineffective, noting that his affidavits in
support of the petition were “rife with inadmissible evidence.” Thomas did
not appeal.
{¶ 4} In January 2010, while the petition for postconviction relief was
pending in the trial court, Thomas filed a notice of appeal from the July 2009
guilty plea. We treated the notice of appeal as a motion for leave to file a
delayed appeal, denied the motion, and dismissed the appeal. See State v.
Thomas, 8th Dist. No. 94225, Motion No. 429388.
{¶ 5} Thomas then filed a third motion to withdraw his guilty plea,
claiming, among other things, that defense counsel had led him to believe
that he was pleading guilty to probationable offenses and that he would, in
fact, receive probation from the court. The court denied the motion.
{¶ 6} On June 17, 2010, Thomas filed a motion seeking leave to file a
delayed petition for postconviction relief. He claimed the delay in filing the
second petition had been caused because the trial court did not inform him of
his right to appeal and that he “just recently learned that he is entitled to a
first direct appeal of the conviction and sentence.” The substantive grounds
for the petition were ineffective assistance of trial counsel in failing to advise
him that he had the right to appeal and that trial counsel further failed to file
a direct appeal on his behalf. The state opposed the motion on grounds that
the successor petition for postconviction relief did not establish that Thomas
had been unavoidably prevented from discovering the facts he relied upon in
the motion. The court granted the state’s motion for summary judgment
without a hearing, finding that Thomas failed to establish that he had been
unavoidably prevented from knowing that he had a right to appeal because
the record showed that he did know he had a right to appeal prior to the
expiration of time for filing his first petition for postconviction relief.
{¶ 7} As relevant in this case, the court cannot entertain a successor
petition for postconviction relief unless the petitioner shows both that (1) he
“was unavoidably prevented from discovery of the facts upon which the
petitioner must rely to present the claim for relief” and (2) has 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[.]” See R.C. 2953.23(A)(1). These requirements are
jurisdictional, meaning that unless they are established, the court cannot
reach the merits of the petition. State v. Muldrew, 8th Dist. No. 85661,
2005-Ohio-5000, at ¶16; State v. Sharif (Sept. 27, 2001), 8th Dist. No. 79325.
{¶ 8} The court did not err by finding that Thomas failed to show that
he had been unavoidably prevented from discovering his right to file a direct
appeal. The record shows that Thomas filed a direct appeal while his first
petition for postconviction relief was pending before the court. The direct
appeal was untimely (it was filed at least four months after the 30-day
deadline set forth in App.R. 3(A)) and we denied leave to file a delayed
appeal. The fact remains that Thomas knew as early as November 2009 that
he could appeal from his guilty plea, as evidenced by a letter from the Ohio
Public Defender’s Office that he appended to his second petition. This
knowledge predated the filing of his first petition for postconviction relief. It
follows that Thomas’s stated basis for seeking leave to file a second petition
for postconviction relief was demonstrably invalid. He not only knew that he
had a right to file a direct appeal, but had actually filed that appeal. That
appeal predated the first petition for postconviction relief, so it follows that
Thomas cannot say that he was unavoidably prevented from discovering that
he had a right to appeal as basis for invoking the court’s jurisdiction to hear
the second petition.
{¶ 9} Thomas also complains that the court erred by granting summary
judgment even though the state filed an untimely opposition to his petition.
This argument is without merit because the court specifically granted the
state leave to respond to the second petition. In any event, even had the
court somehow abused its discretion by granting the state leave to respond to
the second petition, the jurisdictional nature of Thomas’s failure to show that
he had been unavoidably prevented from learning of his right to appeal from
the guilty plea was manifest on the record. The court had no choice but to
dismiss the petition.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MELODY J. STEWART, PRESIDING JUDGE
JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR