State v. Conard

[Cite as State v. Conard, 2021-Ohio-4261.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2021-A-0017
Plaintiff-Appellee,
Civil Appeal from the
-v- Court of Common Pleas
DONTE MAURICE CONARD
a.k.a. DONTE M. CONARD, Trial Court No. 2018 CR 00717
Defendant-Appellant.
OPINION
Decided: December 6, 2021
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelly M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Donte Maurice Conard, pro se, PID #A762-864, Grafton Correctional Institution, 2500
South Avon Belden Road, Grafton, OH 44044 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Donte M. Conard, advances five assignments of error from the
denial of his April 28, 2021 postconviction relief petition:
[1.] Trial court abused its discretion when it denied defendant-
appellant’s timely filed post-conviction relief petitions as being
untimely, res judicata, and for lack of jurisdiction.
[2.] The trial court erred and abused its discretion when it
arbitrarily, improperly, and/or with bias denied defendant-
appellant’s timely filed motion to vacate or set aside judgment
of conviction and sentence pursuant to R.C. 2953.21 et seq.
(post conviction relief petition), in a manner that was not in
compliance with R.C. 2953.21 et seq., and accordingly the
judgment of denial of post conviction relief is contrary to law
and void, and therefore, must be vacated and remanded for
further proceedings.
[3.] Trial court erred and abused its discretion when it
arbitrarily, improperly, and/or with bias denied the defendant-
appellant’s timely filed motion to vacate or set aside judgment
of conviction and sentence pursuant to R.C. 2953.21 et seq.
(post conviction relief petition), in violation of defendant-
appellant’s United States and Ohio constitutional rights, and
accordingly the judgment of denial of post conviction relief
must be reversed and remanded for further proceedings.
[4.] Defendant-appellant was denied to have and be provided
with effective assistance of counsel as guaranteed by Sixth
and Fourteenth Amendments to the United States constitution
for counsel’s faulty advice to plead no contest to a more
severe sentence when a less severe sentence was available.
[5.] Trial court erred when it dismissed defendant-appellant’s
timely filed post conviction relief petition without filing the
requisite findings of fact and conclusions of law and the trial
court’s judgment is not final.
{¶2} Appellant filed his postconviction relief petition pursuant to R.C.
2953.21(A)(1)(a), which provides that “[a] person in any of the following categories may
file a petition in the court that imposed sentence, stating the grounds for relief relied upon,
and asking the court to vacate or set aside the judgment or sentence or to grant other
appropriate relief: (i) Any person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the person’s rights as to render
the judgment void or voidable under the Ohio Constitution or the Constitution of the United
States[.]”
{¶3} “Except as otherwise provided in section 2953.23 of the Revised Code, a
petition under division (A)(1)(a)(i) * * * of this section shall be filed no later than three
hundred sixty-five days after the date on which the trial transcript is filed in the court of
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appeals in the direct appeal of the judgment of conviction * * *.” R.C. 2953.21(A)(2)(a).
If the petitioner fails to meet this deadline, a court may not entertain a postconviction relief
petition unless, as relevant herein, both of the following apply:
(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.
(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.
R.C. 2953.23(A)(1).
{¶4} In his petition, appellant claims that his conviction should be set aside
because his defense counsel gave faulty advice regarding his no contest plea, his written
plea was defective and did not comply with R.C. 2945.05, and the trial court gave incorrect
advisements. The latter two claims are based on matters of record at the time of
conviction and either were or could have been raised on direct appeal. Thus, these two
claims in appellant’s petition are barred by the doctrine of res judicata. State v. Borecky,
11th Dist. Lake No. 2019-L-078, 2020-Ohio-3697, ¶ 26, citing State v. Steffen, 70 Ohio
St.3d 399, 410, 639 N.E.2d 67 (1994).
{¶5} Moreover, as to all claims, the petition was untimely. The transcript in
appellant’s direct appeal was filed on November 12, 2019. Appellant filed his
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postconviction relief petition more than 365 days after the transcript was filed, on April 28,
2021. The petition contains no allegations that appellant was unavoidably prevented from
discovery of the facts upon which he relies to present his claims for relief or that the United
States Supreme Court recognized a new federal or state right that applies retroactively to
persons in his situation. Accordingly, on this basis alone, the trial court did not err or
abuse its discretion when it denied appellant’s petition for postconviction relief. E.g.,
Borecky at ¶ 25, citing State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121
N.E.3d 351, ¶ 38 (when a postconviction petition is untimely and the statutory exceptions
do not apply, the trial court is not permitted to exercise its jurisdiction to address it); see
also State v. VanPelt, 11th Dist. Portage No. 2014-P-0058, 2015-Ohio-1070, ¶ 17 (“When
dismissing a petition upon the grounds that it was untimely, the trial court is under no
obligation to hold a hearing or issue findings of fact and conclusions of law.” (Citations
omitted.)).
{¶6} Based on the foregoing, appellant’s assignments of error lack merit, and the
trial court’s decision is affirmed.
MARY JANE TRAPP, P.J.,
MATT LYNCH, J.,
concur.
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