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State v. Owensby

Court of Appeals of Ohio, Second District, Montgomery

July 27, 2018

STATE OF OHIO Plaintiff-Appellee
v.
LASHON OWENSBY Defendant-Appellant

          Criminal Appeal from Common Pleas Trial Court Case No. 2013-CR-3516/1

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee.

          LASHON OWENSBY, Defendant-Appellant Pro Se.

          OPINION

          WELBAUM, P.J.

         {¶ 1} Defendant-appellant, Lashon Owensby, appeals pro se from the judgment of the Montgomery County Court of Common Pleas overruling his petition for post-conviction relief, wherein he challenged the effectiveness of both his appellate and trial counsel. In addition to arguing that the trial court's decision overruling his petition was in error, Owensby also contends that the post-conviction process is unconstitutional because it does not grant a petitioner the right to conduct discovery in a non-capital case. For the reasons outlined below, the judgment of the trial court will be affirmed.

         Facts and Course of Proceedings

         {¶ 2} On November 21, 2013, a Montgomery County Grand Jury returned a five-count indictment charging Owensby with one count of possessing cocaine in an amount equaling or exceeding 20 grams, but less than 27 grams, a second-degree felony; two counts of possessing marijuana in an amount equaling or exceeding 5, 000 grams, but less than 20, 000 grams, a third-degree felony; and two counts of trafficking marijuana in an amount equaling or exceeding 5, 000 grams, but less than 20, 000 grams, also a third-degree felony.

         {¶ 3} Following his indictment, Owensby filed a motion to suppress the drug evidence on which his charges were based. After holding a hearing on the matter, the trial court overruled Owensby's motion to suppress. Owensby thereafter pled no contest and was found guilty of all five charges. The trial court sentenced Owensby to an aggregate term of seven years in prison. Owensby filed a direct appeal from his conviction and sentence, wherein he challenged the length of his prison term and the trial court's decision overruling his motion to suppress. On July 31, 2015, we affirmed the judgment of the trial court on both matters in State v. Owensby, 2d Dist. Montgomery No. 26247, 2015-Ohio-3054.

         {¶ 4} On April 3, 2017, over a year and a half after his appeal, Owensby filed a "Delayed Petition for Post-Conviction Relief that raised several ineffective assistance claims concerning the performance of both his appellate and trial counsel. On May 2, 2017, the trial court issued a decision overruling Owensby's petition for post-conviction relief on grounds that the petition was untimely. In its decision, the trial court indicated that even if Owensby's petition had been timely filed, the ineffective assistance claims raised therein were either barred by res judicata or were not cognizable in post-conviction proceedings.

         {¶ 5} Owensby now appeals from the trial court's decision overruling his petition for post-conviction relief, raising four assignments of error for review.

         First, Third, and Fourth Assignments of Error

         {¶ 6} For purposes of clarity, we will address Owensby's First, Third, and Fourth Assignments of Error together. Under these three assignments of error, Owensby generally contends that the trial court erred in overruling his petition for post-conviction relief. Each assignment of error corresponds to one of the ineffective assistance claims Owensby raised in his petition, namely that: (1) appellate counsel failed to advise him of the time limitation for filing a petition for post-conviction relief; (2) trial counsel failed to advise him of his right to confront a confidential informant and failed to compel evidence from the confidential informant; and (3) trial counsel failed to investigate and obtain statistical evidence relating to racial profiling and the selective prosecution of defendants based on race. For the following reasons, we find that the trial court did not err in overruling Owensby's petition for post-conviction relief.

         1. Owensby's Petition for Post-Conviction Relief was Untimely

         {¶ 7} "When a direct appeal of the judgment of conviction has been taken * * *, a petition for post-conviction 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 judgment of conviction or adjudication.'" State v. Baker, 2d Dist. Montgomery No. 27596, 2017-Ohio-8602, ΒΆ 12, quoting R.C. 2953.21(A)(2). "Trial courts lack jurisdiction to consider an untimely or successive petition for post-conviction relief, unless the untimeliness ...


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