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State v. Pettway

Court of Appeals of Ohio, Eighth District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
TIMOTHY PETTWAY DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-498474

FOR APPELLANT Timothy Pettway, pro se Inmate No. 550-655 Toledo Correctional Institution.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Mary H. McGrath Assistant. Prosecuting Attorney.

BEFORE: Celebrezze, P.J., Kilbane, J., and McCormack, J.

JOURNAL ENTRY AND OPINION

FRANK D. CELEBREZZE, JR, PRESIDING JUDGE.

{¶ 1} Appellant, Timothy Pettway, appeals from the denial of his postconviction relief petition without a hearing. He argues the trial court was required to hold a hearing on his petition, his original trial counsel was constitutionally ineffective, and claims several other constitutional errors relating to pretrial issues. After a thorough review of the record and law, we affirm.

I. Factual and Procedural History

{¶ 2} The factual and procedural history has been recounted by this court in detail in appellant's direct appeal, State v. Pettway, 8th Dist. No. 91716, 2009-Ohio-4544, ¶ 2-31 ("Pettway 7"). Look to it for an explanation of the underlying criminal case.

{¶ 3} For purposes of this appeal, the following procedural history is relevant. In July 2007, appellant was indicted for the aggravated murder and robbery of Christopher Mitchell. Appellant was convicted of the lesser-included offense of murder with one-and three-year firearm specifications and sentenced to serve 18 years to life in prison.

{¶ 4} After this court affirmed his convictions and sentence in Pettway I, appellant filed numerous writs and motions. On January 27, 2009, appellant filed a motion for postconviction relief. There he alleged that a key witness, codefendant Joseph McGowen, recanted and attached a supporting affidavit from McGowen. He also claimed McGowen could not testify against him, citing the Sixth Amendment. Appellant went on to argue his speedy trial rights were violated, his indictment was defective, and he was not indicted within ten days of arrest, as required by Crim.R. 5. The state filed a brief in opposition on February 2, 2009.

{¶ 5} While his appeal to this court and his postconviction relief petition were pending, appellant filed a motion for new trial on March 12, 2009. There, he argued that McGowen's affidavit recanting his trial testimony required a new trial. After this court affirmed his convictions in Pettway I, appellant filed a motion to vacate void judgment on July 9, 2010. This motion was denied January 18, 2011.

{¶ 6} Next, on November 10, 2011, appellant filed a motion to amend his postconviction petition pursuant to R.C. 2953.21(F), to include ineffective assistance of counsel and improper jury instruction claims. The state again opposed the motion. The trial court did not rule on this motion for some time, but it denied appellant's motion for a new trial on March 13, 2012. Appellant filed several more motions, which were all denied by the trial court.

{¶ 7} Appellant appealed from the March 13, 2012 journal entry on June 5, 2012. He also appealed from the denial of his motion to vacate void judgment entered April 16, 2012. This court dismissed the appeals as untimely and for failure to file the record.

{¶ 8} Appellant next appealed from the denial of a motion to "remand sentencing for the limited purpose of allowing defendant to move trial court for a waiver of payment of court costs, " which the court denied on July 27, 2012.

{¶ 9} Then on November 2, 2012, the trial court filed findings of facts and conclusions of law denying appellant's postconviction relief petition and amended petition. Appellant then timely appealed, pro se, to ...


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