State v. Ward

[Cite as State v. Ward, 2023-Ohio-1606.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-12-021
: OPINION
- vs - 5/15/2023
:
CHRISTOPHER WARD, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 19CR12910
Martin P. Votel, Preble County Prosecuting Attorney, and Andrea K. Boyd, Assistant
Prosecuting Attorney, for appellee.
Christopher Ward, pro se.
M. POWELL, J.
{¶ 1} Appellant, Christopher Ward, appeals a decision of the Preble County Court
of Common Pleas dismissing his petition for postconviction relief. Finding no error, we
affirm.
Preble CA2022-12-021
Facts and Procedural History
{¶ 2} In 2019, Ward, an Ohio State Highway Patrol trooper, was indicted on multiple
counts of sexual battery and gross sexual imposition involving multiple victims. A bench
trial was held in December 2019 at which several of the victims testified. One victim testified
that Ward had stopped her for a traffic violation and then forced her to fellate him in her
vehicle. Another victim was a 15-year-old female friend of Ward's daughter. She testified
that, while spending the night with Ward's daughter at his house, Ward had touched her
pubic area beneath her clothing when he thought she was asleep. Another victim testified
that Ward had stopped the car in which she was a passenger for speeding and that, after
ordering her out of the car, he had fondled her breasts and cupped the area between her
legs during an ostensible pat down search. A fourth victim testified that Ward had
repeatedly stopped her for various traffic offenses. On a written warning he had written his
telephone number, and she had agreed to call him in the hope that he would quit pulling
her over. The two went to dinner and then went back to Ward's home. There, Ward donned
his trooper's uniform, pinned her arms down, put his hands down her pants, and rubbed her
vaginal area beneath her clothes.
{¶ 3} The trial court found Ward guilty on one count of sexual battery and three
counts of gross sexual imposition. On May 11, 2020, the court sentenced Ward to a total
of three years in prison. Ward appealed his convictions to this court, and we affirmed. State
v. Ward, 12th Dist. Preble No. CA2020-06-009, 2021-Ohio-4116.
{¶ 4} In July 2022, Ward filed a petition for postconviction relief. He challenged his
conviction for sexual battery and one of his convictions for gross sexual imposition as the
products of ineffective assistance of counsel. Regarding the sexual-battery conviction,
Ward argued that counsel failed to file a motion to suppress the victim's identification of
Ward as the assailant as unreliable because it was based on her viewing only a single
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photograph of Ward. Ward also argued that counsel was ineffective for failing to call as a
witness a relative of the gross-sexual-imposition victim who would have testified about the
victim's mental health issues and previous accusations of sexual assault against others.
On November 3, 2022, the trial court dismissed the petition as untimely.
{¶ 5} Ward appealed.
II. Analysis
{¶ 6} Ward assigns two errors to the trial court.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDICIAL ERROR IN DENYING THE PETITION BECAUSE IT WAS PREMISED ON
NEWLY DISCOVERED EVIDENCE, ACTUAL INNOCENCE, AND INEFFECTIVE
ASSISTANCE OF COUNSEL WHICH THE ISSUE PRESENTED CLEAR ESTABLISHED
LAW THAT WOULD ALLOW THE APPELLANT TO BYPASS ANY PROCEDURAL
DEFAULT.
{¶ 9} R.C. 2953.21 permits a defendant to file a petition asking the trial court to
vacate or set aside a judgment based on a denial or infringement of the defendant's rights
that render the judgment void or voidable under the Ohio Constitution or the United States
Constitution. The petition must be filed no later than 365 days after the date on which the
trial transcript is filed in the court of appeals in the direct appeal of the conviction, except as
otherwise provided in R.C. 2953.23. R.C. 2953.21(A)(2)(a).
{¶ 10} R.C. 2953.23(A) permits a prisoner to file an untimely petition for
postconviction relief under specific, limited circumstances. The statute pertinently provides:
(A) Whether a hearing is or is not held on a petition filed
pursuant to section 2953.21 of the Revised Code, a court may
not entertain a petition filed after the expiration of the period
prescribed in division (A) of that section * * * unless division
(A)(1) or (2) of this section applies:
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(1) 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
* * *.
{¶ 11} "R.C. 2953.23(A) provides that 'a court may not entertain a petition filed after
the expiration of the period prescribed in [R.C. 2953.21(A)] or a second petition or
successive petitions for similar relief on behalf of a petitioner unless' one of the exceptions
in R.C. 2953.23(A) applies." (Emphasis sic.) State v. Apanovitch, 155 Ohio St.3d 358, 2018-
Ohio-4744, ¶ 36. Thus "a petitioner's failure to satisfy R.C. 2953.23(A) deprives a trial court
of jurisdiction to adjudicate the merits of an untimely or successive postconviction petition."
Id. "'[T]he question whether a court of common pleas possesses subject-matter jurisdiction
to entertain an untimely petition for postconviction relief is a question of law, which appellate
courts review de novo.'" Id. at ¶ 24, quoting State v. Kane, 10th Dist. Franklin No. 16AP-
781, 2017-Ohio-7838, ¶ 9.
{¶ 12} Ward filed his petition for postconviction relief on the grounds of
constitutionally ineffective assistance of counsel. The trial court dismissed the petition after
concluding that it was untimely filed and that Ward had failed to establish an exception to
the timeliness requirement.
{¶ 13} Ward concedes that when he filed his petition the statutory deadline had long
since passed. But he argues that his untimeliness should be excused because his trial
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counsel failed to advise him of the possibility of postconviction relief. Even if this is true, it
is not one of the exceptions listed in R.C. 2953.23(A). The "failure of counsel (appointed
for trial or direct appeal) to advise a defendant of postconviction procedures does not equate
to being 'unavoidably prevented from discovering the facts upon which he must rely to
present the claim for relief.'" State v. Clay, 7th Dist. Mahoning No. 17 MA 0113, 2018-Ohio-
985, ¶ 12, citing R.C. 2953.23(a)(1)(a). That trial counsel failed to tell Ward about
postconviction relief says only that he was unavoidably prevented from discovery of the law.
But "[t]he statute speaks of being unavoidably prevented from discovery facts, not the law."
Id.; see also State v. Theisler, 11th Dist. Trumbull No. 2009-T-0003, 2009-Ohio 6862, ¶ 19-
20. "Simply being unaware of the law * * * does not equate with being unavoidably
prevented from discovering the facts upon which the petition is based." State v. Sturbois,
4th Dist. No. 99CA16, 1999 WL 786318, *2, (Sept. 27, 1999). "Ignorance of the law as to
the time for filing is no excuse." State v. Halliwell, 134 Ohio App.3d 730, 735 (8th Dist.1999)
("Merely because counsel failed to advise him of the deadline for filing a petition does not
show he was 'unavoidably prevented' from discovering the deadline on his own or from
other sources").
{¶ 14} R.C. 2953.23 does not recognize ineffective assistance of counsel in advising
of the right to seek postconviction relief as an exception to the timely filing requirements of
R.C. 2953.21. Ward's argument, in essence, asks us to create a new exception, which we
decline to do. See Clay at ¶ 12 ("A petitioner's assertion that he was not informed of the
procedural mechanism of postconviction relief is essentially an argument for the creation of
an additional exception to the statutory deadlines").
{¶ 15} The same is true of Ward's argument that his ineffective-assistance claim
entirely excuses the statutory timeliness requirement. In support of this argument, Ward
relies on the decision of the federal Sixth Circuit Court of Appeals in Gunner v. Welch, 749
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F.3d 511 (6th Cir.2014), to support his claim that his untimeliness should be excused.
Gunner held that ineffective assistance of counsel may excuse the failure to exhaust state
postconviction remedies required before filing a federal habeas corpus petition. In other
words, ineffective assistance of counsel is an exception to the federal habeas corpus
requirement that state remedies must first be exhausted. But Ohio appellate courts have
uniformly recognized that Gunner has little bearing on state postconviction relief petitions,
as the decision "was a federal habeas decision, not a decision on a state postconviction
petition," Clay at ¶ 13. See also State v. Gutierrez, 9th Dist. Wayne No. 21AP0033, 2022-
Ohio-2252, ¶ 17 ("Like other state appellate courts that have considered Gunner, we
conclude that its holding is inapplicable to the case before us"); State v. Guy, 6th Dist.
Sandusky No. S-15-019, 2015-Ohio-619, ¶ 14 (stating that Gunner is not "relevant to our
determination of whether an untimely postconviction petition should be accepted by Ohio
courts where appellate counsel fails to inform the defendant of the 365-day time period").
Gunner is limited to federal habeas claims. Reading the decision as creating an exception
to the time limit for filing postconviction petitions under R.C. 2953.21(A)(2) would conflict
with Ohio law. State v. Taylor, 8th Dist. Cuyahoga No. 102020, 2015-Ohio-1314, ¶ 14-15.
We agree.
{¶ 16} The record here plainly shows that Ward was not "unavoidably prevented"
from discovering the facts underlying his claims for relief. All the facts that he sought to
introduce in support of his petition were known at the time of his trial. As to the failure of
his counsel to file a motion to suppress regarding the single photograph identification
procedure used in this case, Ward knew (or should have known) this at the time of trial.
Ward admits that his counsel was notified before trial began about the information from the
gross-sexual-imposition victim's relative that he believes should have been presented at
trial. That Ward was not personally aware of this information does not mean that he was
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not unavoidably prevented from discovering it.
{¶ 17} The trial court properly dismissed Ward's petition for lack of jurisdiction.
{¶ 18} The first assignment of error is overruled.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THIS COURT COMMITTED PREJUDICIAL ERROR TO THIS APPELLANT
AND DEPRIVED THE APPELLANT OF PROCEDURAL DUE PROCESS UNDER
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN IT
DENIED THE APPELLANT THE TRANSCRIPTS OF THE ORAL HEARING ON
APPELLANT'S POSTCONVICTION, DEPRIVING THE APPELLANT THE OPPORTUNITY
TO RAISE AS AN ASSIGNMENT OF ERROR ANY INCONSISTENCIES AT THE
HEARING THAT RISES TO A CONSTITUTIONAL MAGNITUDE.
{¶ 21} Ward argues that this court denied him due process by not allowing him to
supplement the appellate record with a transcript of the September 28, 2022 hearing on his
petition.
{¶ 22} On December 2, 2022, Ward filed a praecipe for a transcript of the hearing.
Three days later, the clerk issued the App.R. 11(B) notice that the record was complete.
App.R. 9(B)(1) states that "it is the obligation of the appellant to ensure that the proceedings
the appellant considers necessary [are included] in the record * * *." Ward took no further
action to have the hearing transcript included in the appellate record of this case.
{¶ 23} Regardless, a transcript was unnecessary. No evidence was presented at
the hearing, only the arguments of the parties. The trial court ultimately dismissed Ward's
petition for lack of jurisdiction, and we have concluded that dismissal was proper. Having
a transcript of the hearing would not change our decision.
{¶ 24} The second assignment of error is overruled.
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III. Conclusion
{¶ 25} We have overruled the two assignments of error presented. The trial court's
judgment is affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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