Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Dave Ward, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Anthony Thomas Miranda Assistant
Prosecuting Attorney Justice Center.
BEFORE: S. Gallagher, J., Kilbane, P.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE.
Dave Ward appeals the denial of his motion for postconviction
relief. We affirm.
"In June 2013, Ward was indicted on 31 counts, including
aggravated murder charges, in violation of R.C. 2903.01, as
well as numerous assault and firearm charges." State
v. Ward, 8th Dist. Cuyahoga No. 101041, 2014-Ohio-4579,
¶ 2. "The incident involved a teenage party that
turned deadly when multiple partygoers[, including Ward, ]
fired shots into opposing crowds of teenagers, killing one
and wounding others." Id. at ¶ 3.
"Ward pleaded guilty to amended charges of involuntary
manslaughter, felonious assault, discharge of a firearm on or
near prohibited premises, aggravated rioting, all with one-
and three-year firearm specifications, and having a weapon
while under disability." Id. Involuntary
manslaughter is defined as causing the death of another as a
proximate result of committing or attempting to commit any
felony offense. R.C. 2903.04(A). Ward agreed to a 7- to
16-year prison term as part of the plea deal. Ward
at ¶ 3. The court imposed a term of nine years.
Id. at ¶ 4. The convictions were affirmed with
the panel noting that "Ward admitted to being at the
party on the night of the shooting, to having a gun on his
person, and to shooting the gun during the melee. His own
admissions * * * resulted in the charges contained in the
amended complaint" to which he pleaded guilty.
In June 2016, Ward filed a petition for postconviction relief
claiming that he recently discovered a witness who was able
to demonstrate Ward's innocence, that she was threatened
by detectives to implicate Ward for that murder, and that the
codefendants conspired to include Ward in order to get a
better plea deal. Ward latched onto language in the direct
appeal that noted there was evidence that Ward was not guilty
of murder because ballistics proved the fatal shot came from
another weapon. Although involuntary manslaughter is
colloquially known as felony murder, involuntary manslaughter
punishes the offender for any death caused as a proximate
result of felonious activity. The state does not need to
prove the offender was the person who actually killed the
victim. This "newly discovered" witness's
testimony does not actually address any of the crimes to
which Ward pleaded guilty. See Ward at ¶ 18-19.
Ward admitted to committing felonies, and there was no
dispute that someone died as a proximate result of those
acts. Id. Nevertheless, Ward's petition is
untimely, and the trial court lacked jurisdiction to
entertain the merits of the request.
R.C. 2953.21 provides an offender the ability to file a
petition for postconviction relief no later than 365 days
after the date on which the trial transcript is filed in the
direct appeal of the judgment of conviction. R.C.
2953.21(A)(2). In this case, the transcript was filed in May
2014, and Ward filed his petition in June 2016. The petition
is per se untimely. State v. Orr, 8th Dist. Cuyahoga
No. 100166, 2014-Ohio-501, ¶ 6; State v.
Alexander, 8th Dist. Cuyahoga No. 95995, 2011-Ohio-1380,
¶ 14. The trial court did not err in denying Ward's
petition for postconviction relief. State ex rel.
Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042,
781 N.E.2d 155, ¶ 13; State v. Jones, 8th Dist.
Cuyahoga No. 104667, 2017-Ohio-1052, ¶ 17 (S. Gallagher,
In fact, under R.C. 2953.23(A), the trial court may not even
entertain a petition filed after the expiration of the
365-day period unless the petitioner demonstrates that (1) he
was unavoidably prevented from discovering the facts upon
which the petitioner must rely to present a claim for
postconviction relief or (2) the United States Supreme Court
recognizes a new federal or state right that retroactively
applies to the petitioner. If the petitioner demonstrates
such, he must then show by clear and convincing evidence that
"but for the constitutional error at trial, " no
reasonable factfinder would have found him guilty of the
offense. R.C. 2953.23(A)(1)(b). State v. Rackley,
8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504, ¶ 13.
This two-part exception is not available to offenders who
plead guilty or no contest to the charges underlying their
"The time limit for filing a petition for postconviction
relief is jurisdictional." State v. Kleyman,
8th Dist. Cuyahoga No. 93896, 2010-Ohio-3612, ¶ 35;
Rackley at ¶ 14, citing State v.
Johns, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162,
¶ 8. "Unless a defendant makes the showings
required by R.C. 2953.23(A), the trial court lacks
jurisdiction to consider an untimely petition for
postconviction relief." Id., citing State
v. Thomas, 8th Dist. Cuyahoga No. 99972, 2014-Ohio-1512,
¶ 8; and State v. Carter, 2d Dist. Clark No.
03CA-11, 2003-Ohio-4838, ¶ 13.
The only exception to the 365-day time limit is unavailable
to a defendant in Ward's position because of the second
prong of the conjunctively drafted exception under R.C.
2953.23(A)(1). Ward pleaded guilty and thus can never
demonstrate that, but for the error at trial, no reasonable
trier of fact would have found him guilty. Ward's guilty
plea limits his ability to file a petition for postconviction
relief to one year. His petition was not filed within that
period, and the trial court lacked jurisdiction to consider
the merits of his claim. The petition was rightfully denied.