Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
APPELLANT Dwayne Davis, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Katherine Mullin Assistant County
BEFORE: Jones, J., Keough, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE.
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.
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
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.
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.
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),
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).
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.
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