State v. Harris

[Cite as State v. Harris, 2023-Ohio-1426.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 22CA011887
22CA011890
Appellee
v.
APPEAL FROM JUDGMENT
ISAIAH HARRIS ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF LORAIN, OHIO
CASE Nos. 08CR076357
08CR075721
08CR077230
DECISION AND JOURNAL ENTRY
Dated: May 1, 2023
HENSAL, Judge.
{¶1} Isaiah Harris appeals an order of the Lorain County Court of Common Pleas that
denied his petition for postconviction relief. This Court affirms.
I.
{¶2} In 2009, Mr. Harris was convicted of rape, aggravated burglary, intimidation,
domestic violence, and violating a protection order. The charges against him arose from three
incidents involving the same victim, and the cases were consolidated into a single bench trial. The
trial court sentenced him to 23 1/2 years in prison. Mr. Harris appealed, and this Court affirmed
his convictions. State v. Harris, 9th Dist. Lorain Nos. 09CA009605, 09CA009606, 09CA009607,
2010-Ohio-1081. On July 15, 2022, Mr. Harris petitioned the trial court for postconviction relief.
The trial court dismissed his petition without a hearing. Mr. Harris appealed, raising four
assignments of error for this Court’s review.
2
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED [MR.
HARRIS’S] PETITION WITHOUT AN EVIDENTIARY HEARING OR
[FINDINGS OF FACT] AND CONCLUSION[S] OF LAW.
{¶3} In his first assignment of error, Mr. Harris argues that the trial court erred by
dismissing his petition for postconviction relief without a hearing and by doing so without issuing
findings of fact and conclusions of law. This Court does not agree.
{¶4} Revised Code Section 2953.21(A)(2)1 provides that a petition for postconviction
relief must be filed within 365 days of the date on which the transcript is filed in a direct appeal
or, if no direct appeal is taken, within 365 days of the expiration of the time for filing an appeal.
The transcript in Mr. Harris’s direct appeal was filed on September 28, 2009, but he filed his
petition on July 15, 2022, well after the deadline provided by Section 2953.21(A)(2) passed.
{¶1} “A petitioner * * * who files a petition more than 365 days after the trial transcript
was filed in the court of appeals in his direct appeal * * * must satisfy the jurisdictional
requirements in R.C. 2953.23(A)(1) or (2) for an untimely, second, or successive petition for
postconviction relief.” State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, ¶ 37, citing State v.
Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, ¶ 20. See also State v. Apanovitch, 155 Ohio St.3d
358, 2018-Ohio-4744, ¶ 22. A trial court may only entertain an untimely or successive petition
for postconviction relief when:
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
1
Mr. Harris filed his petition on July 15, 2022, so the versions of the postconviction
statutes effective on that date apply in this case. See State v. Stephens, 9th Dist. Summit
No. 27957, 2016-Ohio-4942, ¶ 6. See also State v. McManaway, 4th Dist. Hocking No.
16CA8, 2016-Ohio-7470, ¶ 11 (explaining that “the triggering event is the filing of the
postconviction petition, which determines the applicable version of the statute.”).
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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.
R.C. 2953.23(A)(1)(a).2 A petitioner, other than one who challenges a sentence of death, must
also demonstrate 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[.]” R.C. 2953.23(A)(1)(b). When the requirements of Section 2953.23(A)(1) have
not been met, a trial court cannot consider an untimely or successive petition. See Apanovitch at
¶ 36. “[W]hether a trial court has subject-matter jurisdiction to entertain an untimely, second, or
successive petition for postconviction relief is a question of law, which we review de novo.”
Hatton at ¶ 38.
{¶2} In this case, Mr. Harris argues that his petition was timely filed because he was
unavoidably prevented from discovering evidence that forms the basis for his claims for relief
under Brady v. Maryland, 373 U.S. 83 (1963). Specifically, Mr. Harris maintains that a number
of police reports documenting occasions when the victim falsely alleged he had committed other
offenses against her were not disclosed by the State. Mr. Harris acknowledges that his defense
attorney had the reports by the time his trial commenced. Nonetheless, he argues that the State’s
failure to produce the evidence meets the standard articulated in Section 2953.23(A)(1)(a) under
Bethel, 167 Ohio St.3d 362, 2022-Ohio-783.
{¶3} In Bethel, the defendant claimed that an investigation report that had been
suppressed by the State indicated that someone else committed the offenses. Id. at ¶ 2. The
defendant moved leave to file a motion for a new trial and filed a successive petition for
2
The exception provided by Section 2953.23(A)(2) is not at issue in this case.
4
postconviction relief based on the alleged Brady violation. The trial court determined that it did
not have jurisdiction to consider the petition for postconviction relief, and the court of appeals
affirmed that decision. Id. at ¶ 15.
{¶4} The Supreme Court noted that in order to meet the standard articulated in Section
2953.23(A)(1)(a), “courts in Ohio have previously held that a defendant ordinarily must show that
he was unaware of the evidence he is relying on and that he could not have discovered the evidence
by exercising reasonable diligence.” Id. at ¶ 21. Observing that the court of appeals rejected the
defendant’s arguments because “[the defendant] should have conducted his own investigation to
discover” the existence of the information at issue, the Supreme Court concluded that the burden
placed upon the defendant by the lower courts “[was] inconsistent with Brady.” Id. at ¶ 23-24.
The Supreme Court rejected the requirement that a defendant exercise due diligence in Brady
cases, holding that “when a defendant seeks to assert a Brady claim in an untimely or successive
petition for postconviction relief, the defendant satisfies the ‘unavoidably prevented’ requirement
contained in R.C. 2953.23(A)(1)(a) by establishing that the prosecution suppressed the evidence
on which the defendant relies.” Id. at ¶ 25.
{¶5} Mr. Harris’s petition is distinguishable from the one at issue in Bethel, however,
because he acknowledges that he had all of the information upon which his petition relies at the
time of his trial. Although Bethel rejected application of a due-diligence standard under Section
2953.23(A)(1)(a), it did not excuse untimely petitions when the defendant is in possession of the
evidence in question. See Bethel at ¶ 21. Compare United States v. Agurs, 427 U.S. 97, 103 (1976)
(noting that a Brady violation involves “the discovery, after trial[,] of information which had been
known to the prosecution but unknown to the defense.”). Mr. Harris, therefore, did not
demonstrate that he was unavoidably prevented from discovering the facts upon which his petition
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relies. See R.C. 2953.23(A)(1)(a). His petition for postconviction relief was, therefore, untimely.
See R.C. 2953.21(A)(2).
{¶6} Mr. Harris has also argued that the trial court erred by failing to issue findings of
fact and conclusions of law and by failing to conduct a hearing on his petition. Section 2953.21(H)
requires trial courts to “make and file findings of fact and conclusions of law” when they “do[ ]
not find grounds for granting relief[.]” When a trial court dismisses an untimely petition for
postconviction relief, however, findings of fact and conclusions of law are not required. State ex
rel. Ashipa v. Kubicki, 114 Ohio St.3d 459, 2007-Ohio-4564, ¶ 4. “This rule applies even when
the defendant * * * claims, under R.C. 2953.23, that he was unavoidably prevented from discovery
of the facts to present his claim for post-conviction relief.” Id. quoting State ex rel. Hach v. Summit
Cty. Court of Common Pleas, 102 Ohio St.3d 75, 2004-Ohio-1800, ¶ 9. Similarly, the trial court
was not required to conduct a hearing on the motion. See State v. Sparks, 9th Dist. Summit No.
27292, 2014-Ohio-5017, ¶ 10.
{¶7} The trial court did not err by dismissing Mr. Harris’s petition for postconviction
relief or by doing so without issuing findings of fact and conclusions of law. Mr. Harris’s first
assignment of error is overruled.
ASSIGNMENTS OF ERROR II, III, AND IV
PETITIONER’S TRIAL & APPELLATE COUNSELS WERE
CONSTITUTIONALLY INEFFECTIVE WHERE COUNSEL FAILED TO
BRING PETITIONER AWARE OF: (2) THE EXISTENCE OF THE STATE’S
[SECTION] 2953.21 POST-CONVICTION PROCEEDING; AND (3) THAT
POST-CONVICTION WAS THE PROPER VEHICLE TO RAISE THE
CONSTITUTIONAL QUESTION(S) THAT WAS DEPENDENT ON
MATERIAL WHICH EXISTED OUTSIDE THE RECORD [AND] (4) TRIAL
COUNSEL DID NOT ADHERE TO CRIM. R. 16’S RECIPROCAL
DISCOVERY CLAUSE.
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{¶8} Mr. Harris’s second, third, and fourth assignments of error appear to argue that his
trial and appellate attorneys were ineffective. Mr. Harris has not separately argued these
assignments of error, however, and “[this] Court may disregard [them]” on that basis. App.R.
12(A)(2). See also State v. Robinson, 9th Dist. Summit No. 28982, 2019-Ohio-518, ¶ 3. To the
extent that Mr. Harris’s second, third, and fourth assignments of error allege error in connection
with the trial court’s order dismissing his petition, they are also moot. See App.R. 12(A)(1)(c).
III.
{¶9} Mr. Harris’s first assignment of error is overruled. His second, third, and fourth
assignments of error are moot. The judgment of the Lorain County Court of Common Pleas is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
SUTTON, P. J.
STEVENSON, J.
CONCUR.
APPEARANCES:
ISAIAH HARRIS, pro se, Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting
Attorney, for Appellee.