Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Maurice L. Bates, pro se
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Amy Venesile Assistant Prosecuting Attorney
BEFORE: E.A. Gallagher, P.J., Blackmon, J., and Laster Mays,
JOURNAL ENTRY AND OPINION
A. GALLAGHER, P.J.
Defendant-appellant Maurice Bates appeals the denial of his
postconviction petition to vacate or set aside the judgment
of conviction of sentence in the Cuyahoga County Court of
Common Pleas. We affirm.
The relevant facts and procedural history of this case are
set forth in State v. Bates, 8th Dist. Cuyahoga No.
102756, 2015-Ohio-4989. The present appeal is limited to
Bates's postconviction petition to vacate his conviction
filed on April 10, 2017, wherein he alleged that his trial
counsel provided ineffective assistance of counsel by (1)
inducing him to enter a guilty plea based on a promise of a
lesser sentence than that received and (2) failing to
investigate his case.
In a petition for postconviction relief based on a claim of
ineffective assistance of counsel, the petitioner bears the
initial burden to submit evidentiary documents containing
sufficient operative facts to demonstrate: (1) deficient
performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) that
counsel's deficient performance prejudiced him, i.e., a
reasonable probability that but for counsel's errors, the
result of the proceeding would have been different. State
v. Moore, 2d Dist. Clark No. 2014-CA-66, 2015-Ohio-550,
¶ 13, citing State v. Kapper, 5 Ohio St.3d 36,
38, 448 N.E.2d 823 (1983); see also Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of
There are strict time limits for seeking postconviction
relief under R.C. 2953.21. Under R.C. 2953.21(A)(2), a
petition for postconviction relief 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 or, if no appeal is taken, no later than 365 days
after the expiration of time for filing the appeal.
If a defendant's petition is untimely under R.C.
2953.21(A)(2), then it must comport with R.C. 2953.23(A).
Under R.C. 2953.23(A)(1), the trial court may not consider a
delayed petition for postconviction relief unless the
petitioner satisfies two requirements. First, the petitioner
must demonstrate either that (1) he was unavoidably prevented
from discovering the facts upon which he relies in the
petition or (2) the United States Supreme Court has
recognized a new federal or state right that applies
retroactively to the petitioner. R.C. 2953.23(A)(1)(a).
Second, the petitioner must establish by clear and convincing
evidence that no reasonable factfinder would have found him
guilty but for constitutional error at trial. R.C.
The time limit for filing a motion for postconviction relief
is jurisdictional. 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. State v. Thomas,
8th Dist. Cuyahoga No. 99972, 2014-Ohio-1512, ¶ 8,
citing State v. Carter, 2d Dist. Clark No. 03CA-11,
2003-Ohio-4838, ¶ 13, citing State v. Beuke,
130 Ohio App.3d 633, 720 N.E.2d 962 (1st Dist.1998). A trial
court need not conduct an evidentiary hearing when it
dismisses an untimely postconviction relief petition.
State v. Moon, 8th Dist. Cuyahoga No. 101972,
2015-Ohio-1550, ¶ 23.
A trial court's decision to deny a postconviction
petition without a hearing is reviewed for abuse of
discretion. State v. Abdussatar, 8th Dist. Cuyahoga
No. 92439, 2009-Ohio-5232, ¶ 16. An "abuse of
discretion" requires more than an error of law or of
judgment; it "implies that the court's attitude is
unreasonable, arbitrary or unconscionable."
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
Bates concedes that his petition was filed beyond the time
limitation set forth in R.C. 2953.21(A)(2) but argues that he
was unavoidably prevented from obtaining the two affidavits
that he attached to his petition pursuant to R.C.
2953.23(A)(1). We find no merit to Bates's arguments. The
first affidavit is from Alice Burns, Bates's girlfriend
and the mother of his daughter. On its face this affidavit
clearly does not meet the requirements of R.C.
2953.23(A)(1)(a). The second affidavit is from Issac Strozier
who averred that Bates was present at the shooting in this
case and that he did not see Bates with a firearm but, also,
that he did not witness the actual shooting. Bates's own
affidavit addresses his inability to locate two other alibi
witnesses but fails to explain why he was unavoidably
prevented from securing the affidavits of either Burns or
Strozier or when he did, in fact, obtain them. Nor is there
an averment in any of the affidavits establishing that
Bates's trial attorney failed to interview Strozier.
Furthermore, Bates's guilty plea bars him from satisfying
the conditions under R.C. 2953.23(A)(1) for the trial court
to consider an untimely petition for postconviction relief.
State v. Rackley, 8th Dist. Cuyahoga No. 102962,
2015-Ohio-4504, ¶ 17. Although this court recognized a
narrow exception to the general rule that a guilty plea
precludes the application of R.C. 2953.23(A)(1) in State
v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550,