State v. Durham

[Cite as State v. Durham, 2012-Ohio-4165.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98044
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ROY DURHAM
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-525549
BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 13, 2012
ATTORNEY FOR APPELLANT
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, OH 44137
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Kristen L. Sobieski
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:
{¶1} Defendant-appellant Roy Durham, Jr. sought postconviction relief from his
conviction for felonious assault and kidnapping. He claimed that he was denied the
effective assistance of counsel because his trial attorney failed to investigate and
subpoena potential witnesses and failed to utilize exculpatory evidence at trial. The state
argued that Durham’s claims were barred by res judicata because the evidence submitted
in support of the petition was available to Durham prior to trial. The court denied relief
finding that none of the documents that Durham offered were outside the original record
and that other evidence did not amount to newly discovered evidence outside the record.
{¶2} R.C. 2953.21(A)(1) permits a person convicted of a criminal offense, and
who claims that there was a denial or infringement of the person’s rights under either the
Ohio Constitution or the United States Constitution, to file a petition asking the court to
vacate or set aside the judgment. R.C. 2953.21(A)(2) states that a petition for
postconviction relief must be filed “no later than one hundred eighty days after the date
on which the trial transcript is filed in the court of appeals in the direct appeal of the
judgment of conviction[.]” The time requirements for postconviction relief under R.C.
2953.21(A) are jurisdictional. State v. Hutton, 8th Dist. No. 80763, 2007-Ohio-5443, ¶
23.
{¶3} The state argues that Durham did not timely file his petition for
postconviction relief. It maintains that the record in Durham’s direct appeal was filed
June 10, 2010 and that Durham did not file his petition for postconviction relief until
March 12, 2011 — a time period exceeding 180 days. It further argues that Durham did
not explain the delay by advising the court that he had been “unavoidably prevented”
from discovering the facts that he was relying upon in the petition nor did he claim
entitlement to a new federal or state right that applied retroactively to his situtation. See
R.C. 2953.23(A).
{¶4} The state’s recitation of facts is correct — more than 180 days elapsed from
the time the record was filed in Durham’s direct appeal to the time he filed his petition for
postconviction relief. So on the face of the record, Durham’s petition was untimely.
{¶5} Although Durham filed a supplemental record in his direct appeal on
September 13, 2010, this filing did not extend the time in which to file the petition for
postconviction relief. The filing of a supplemental record “is irrelevant for the purposes
of the 180-day time limit for a postconviction relief petition.” State v. Rice, 11th Dist.
No. 2010-A-0046, 2011-Ohio-3746, ¶ 26. “For purposes of determining when the
180-day time period for filing a postconviction relief petition shall accrue, only the
certified, written transcript constitutes a ‘transcript’ under App.R. 9 and R.C.
2953.21(A)(2) * * *.” State v. Everette, 129 Ohio St. 3d 317, 2011-Ohio-2856, 951
N.E.2d 1018, syllabus. And in State v. Chavis-Tucker, 10th Dist. No. 05AP-974,
2006-Ohio-3105, the court of appeals rejected a contention that the 180-day time period
to file a petition for postconviction relief began from the filing of two supplemental
transcripts of pretrial hearings. Id. at ¶ 7-9.
{¶6} The rationale behind these holdings is that an appellant should not be allowed
to unilaterally extend the statute’s time limitation by filing irrelevant transcripts of pretrial
hearings months after the filing of his trial transcript. State v. Johnson, 11th Dist. No.
99-T-0143, 2001 Ohio App. LEXIS 494 (Feb. 9, 2001); Chavis-Tucker at ¶ 8.
{¶7} Durham received permission to supplement the record with proceedings in
CR-504209. That was a previous case number involving the same charges. It had been
dismissed without prejudice by the state and refiled as CR-525549. Nothing in the
record from CR-504209 had any relevance to the appeal from Durham’s conviction in
CR-525549. Durham also received permission to supplement the record with
proceedings from a domestic violence case in the Bedford Municipal Court. Again, the
record from the municipal court case had no relevance to the appeal in CR-525549.
{¶8} Although the court did not state timeliness as a basis for denying the
requested relief, we may sua sponte raise timeliness because it is a jurisdictional issue.
State v. Hill, 160 Ohio App.3d 324, 2005-Ohio-1501, 827 N.E.2d 351, ¶ 15 (8th Dist.).
We conclude that the filing of the supplemental record in Durham’s direct appeal did not
extend the time to file a petition for postconviction relief. The certified, written
transcript from that appeal was filed on June 10, 2010. Durham did not file his petition
for postconviction relief until March 12, 2011 — a period in excess of 180 days. This
deprived the court of jurisdiction to consider the petiton for postconviction relief.
{¶9} 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
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR