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State of Ohio v. Dewitt Rucker

September 30, 2011

STATE OF OHIO APPELLEE
v.
DEWITT RUCKER APPELLANT



APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 2009-01-0047C

The opinion of the court was delivered by: Dickinson, Judge.

Cite as

State v. Rucker,

ss:

DECISION AND JOURNAL ENTRY

INTRODUCTION

{¶1} A jury convicted DeWitt Rucker of possession of crack cocaine, possession of cocaine, trafficking in cocaine, having weapons under disability, and possessing criminal tools. In addition, the judge who presided over his trial found him guilty of a minor misdemeanor charge of possession of marijuana. Mr. Rucker appealed, and this Court affirmed his convictions. He filed a petition for post-conviction relief in the trial court 306 days after the transcript of proceedings was filed in his direct appeal. The trial court dismissed his petition as untimely.

{¶2} Mr. Rucker has appealed, arguing that the trial court failed to review the transcript of proceedings before it dismissed his petition for post-conviction relief and that the trial court incorrectly determined that he was not unavoidably prevented from discovering the facts underlying his petition. We affirm because the trial court was not required to review the trial transcript and Mr. Rucker did not demonstrate that his petition was based on facts that could not have been discovered within the time period allowed for filing his petition.

UNTIMELY PETITION

{¶3} Mr. Rucker's first assignment of error is that the trial court incorrectly failed to review the trial transcript before denying his petition as untimely. Specifically, Mr. Rucker has argued that Section 2953.21(C) of the Ohio Revised Code required the trial court to consider "all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript."

{¶4} The problem with Mr. Rucker's argument is that he has taken Section 2953.21(C) of the Ohio Revised Code out of context. The language upon which Mr. Rucker relies describes what a trial court is required to consider when it decides whether there are substantive grounds for relief stated in a timely petition. Id. If a trial court decides that a petition is untimely and that there were no grounds for filing it late, the trial court does not have to make the determination described in Section 2953.21(C). In this case, the trial court decided that Mr. Rucker's petition was untimely, so Section 2953.21(C) of the Ohio Revised Code did not apply. Mr. Rucker's first assignment of error is overruled.

{¶5} His second assignment of error is that the trial court incorrectly determined that the evidence upon which his petition was based was either known at the time of trial or could have been discovered then. Under Section 2953.23(A)(1) of the Ohio Revised Code, a trial court cannot consider an untimely petition for post-conviction relief unless the petitioner demonstrates "that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or . . . the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation[.]" Mr. Rucker supported his petition with the affidavit of Marvin Shepard, a fellow inmate, and two affidavits from Everitt Whitfield, a witness who testified during his trial but who now claims that he lied. According to Mr. Rucker's petition, he "was certainly unavoidably prevented from discovering" this fact, but he did not explain how he was unavoidably prevented from doing so until now. See generally State v. Cool, 9th Dist. No. 24518, 2009-Ohio-4333, at ¶13. In fact, one of Mr. Whitfield's affidavits is dated well within the time limit for filing a petition for post-conviction relief. Mr. Rucker's second assignment of error is overruled.

CONCLUSION

{ΒΆ6} Section 2953.21(C) of the Ohio Revised Code did not require the trial court to consider the trial transcripts before it decided whether Mr. Rucker had cause for filing an untimely petition for post-conviction relief, and Mr. Rucker did not demonstrate how he was unavoidably prevented from discovering the facts ...


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