State v. Smith ( 2021 )

[Cite as State v. Smith, 2021-Ohio-2952.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190714
TRIAL NO. B-1507289-A
Plaintiff-Appellee, :
vs. : O P I N I O N.
KENT SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 27, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Kent Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
HENDON, Judge.
{¶1} Defendant-appellant Kent Smith appeals the Hamilton County
Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et seq. for
postconviction relief. Because the common pleas court had no jurisdiction to
entertain his late postconviction petition, we affirm the court’s judgment.
I. Procedural Posture
{¶2} Smith was tried before a jury on eight felony counts charged in the
case numbered B-1507289-A and eleven felony counts charged in the case numbered
B-1601998. He was convicted on two counts of aggravated robbery, two counts of
aggravated burglary, four counts of burglary, one count of felonious assault, and four
counts of having a weapon while under a disability.
{¶3} In his direct appeal, this court affirmed the trial court’s judgment in
part, reversed it in part, and remanded the matter to the trial court to conduct a new
sentencing hearing. We found no error in the guilty verdicts, nor did we find that
Smith’s counsel had provided ineffective assistance. State v. Smith, 1st Dist.
Hamilton No. C-180151, 2019-Ohio-5264, ¶ 109.
{¶4} Smith also filed a pro se “Petition to Vacate or Set Aside Judgment of
Conviction or Sentence” pursuant to R.C. 2953.21 and Crim.R. 35, arguing that he
received ineffective assistance of counsel. The common pleas court denied the
petition. This appeal followed.1
{¶5} On appeal, Smith presents a single assignment of error that essentially
restates his postconviction claim. Therefore, the assignment of error can fairly be
1 Although the postconviction petition was filed and denied under both trial numbers, the notice
of appeal was only filed in the case numbered B-1507289-A.
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OHIO FIRST DISTRICT COURT OF APPEALS
read to challenge the common pleas court’s denial of his postconviction petition. We
conclude that the petition was subject to dismissal for lack of jurisdiction.
II. No Jurisdiction to Entertain the Petition
{¶6} R.C. 2953.21(A)(2) provides that a postconviction petition must be
filed within 365 days from the filing of the transcript of the proceedings in his direct
appeal. As provided by R.C. 2953.23(A)(1)(a) and (b), an untimely filed
postconviction petition may be entertained by the common pleas court only if the
petitioner shows either that the petitioner was unavoidably prevented from
discovering the facts upon which the postconviction claim depends, or that the claim
is predicated upon a new and retrospectively applicable right recognized by the
United States Supreme Court since the time for filing the petition had expired, and
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 * * *.”
{¶7} Smith was incarcerated when he filed his postconviction petition. The
record shows that the transcript of the proceedings was filed with this court on
September 27, 2018. The deadline to file the postconviction petition was September
27, 2019, which was a Friday. Smith’s petition was timestamped on September 30,
2019, which was a Monday.
{¶8} The state contends that the trial court properly denied the petition
because it was not timely filed. Smith responds that because a “three-day time
period is logically the presumed time for mail from London, Ohio to reach
Cincinnati, Ohio, it is within reason that the Hamilton County Clerk received [his]
brief timely on September 27, 2019 but failed to file it timely.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} In State v. Smith, 1st Dist. Hamilton No. C-190162, 2020-Ohio-1370,
the appellant asserted that his postconviction petition had satisfied the R.C.
2953.21(A)(2) time restrictions, because he had timely delivered the petition to the
prison mailroom. This court held that “a prison-mailbox rule does not operate in
this state.” Id. at ¶ 11. Therefore, for purposes of R.C. 2953.21(A)(2), a
postconviction petition is filed when it is filed with the clerk of courts, not when it is
placed in the prison mailing system. Id. Accordingly, Smith’s petition was not timely
filed.
{¶10} Also, Smith did not satisfy the jurisdictional requirements for
entertaining a late postconviction petition. He did not show that he was unavoidably
prevented from discovering the facts upon which his postconviction claim depended.
And he did not show that but for his trial counsel’s ineffectiveness, no reasonable
factfinder would have found him guilty.
III. Conclusion
{¶11} Notwithstanding the fact that Smith’s postconviction petition was filed
one day late, the statute requires strict adherence to filing deadlines in
postconviction claims. There is no “prison mailbox” exception to this. Therefore, the
common pleas court did not have jurisdiction to entertain the petition, as none of the
exceptions provided by R.C. 2953.23 applied. And the court did not err in dismissing
the postconviction claim without a hearing. Smith’s sole assignment of error is
overruled and the trial court’s judgment is affirmed.
Judgment affirmed.
ZAYAS, P.J., and CROUSE, J., concur.
SYLVIA SIEVE HENDON, retired, from the First Appellate District, sitting by assignment.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion
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