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State v. Davis

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DWAYNE DAVIS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-574008-A

          FOR APPELLANT Dwayne Davis, pro se.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Katherine Mullin Assistant County Prosecutor.

          BEFORE: Jones, J., Keough, P.J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR, JUDGE.

         {¶1} Defendant-appellant Dwayne Davis, pro se, appeals from the trial court's 2017 judgments denying his pro se (1) petition to vacate or set aside his judgment of conviction or sentence and (2) motion for summary judgment. For the reasons that follow, we affirm.

         {¶2} In 2013, Davis was indicted as a result of several burglaries he committed. After negotiations with the state, he pleaded guilty to two burglary counts and one intimidation of a crime victim or witness count. He was sentenced to a ten-year prison term.

         {¶3} Davis filed a delayed appeal, in which he contended, among other things, that his trial counsel was ineffective for not filing a motion to suppress. His conviction was affirmed, however. State v. Davis, 8th Dist. Cuyahoga No. 102639, 2015-Ohio-4501.

         {¶4} In 2014, approximately one year after he had been sentenced, Davis filed a motion, pro se, to withdraw his guilty plea, in which he again contended that his counsel was ineffective for failing to file a suppression motion. The trial court denied the motion. Davis appealed; this court affirmed the trial court. State v. Davis, 8th Dist. Cuyahoga No. 104149, 2016-Ohio-5850.

         {¶5} In January 2017, Davis, pro se, filed a petition to vacate or set aside his judgment of conviction or sentence (i.e., a petition for postconviction relief), again based on a claim of ineffective assistance of counsel. In February 2017, Davis, pro se, filed a motion for summary judgment. The trial court denied both motions, finding the postconviction petition untimely. Davis now appeals, raising the following two assignments of error for our review:

I. The trial court abused its discretion when it denied Appellant's postconviction petition where Appellant established exception needed pursuant to R.C. 2953.23(A)(1), R.C. 2953.23(A)(1)(b).
II. The trial court committed prejudicial error by denying Appellant summary judgment without setting forth specific facts which prove there remains a genuine issue to be litigated pursuant to Civ.R. 56(E).

         {¶6} There are strict time limits for defendants seeking postconviction relief under R.C. 2953.21. Under subsection (A)(2) of the statute, 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 or, if no appeal is taken, no later than 365 days after the expiration of time for filing the appeal.

         {¶7} Davis admits that his petition was untimely, but contends that under R.C. 2953.23, his delay was excused. If a defendant's petition is untimely under R.C. 2953.21(A)(2), then it must comply with R.C. 2953.23(A)(1). Under that section, a trial court may not consider a delayed ...


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