FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE No. DL-11-11-2532
JENNIFER M. KINSLEY, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
CALLAHAN, PRESIDING JUDGE.
Appellant, D.J., appeals the decision of the Summit County
Court of Common Pleas, Juvenile Division, that dismissed his
petition for postconviction relief without a hearing. This
In 2012, D.J. was adjudicated delinquent by virtue of
committing rape, a violation of RC. 2907.02(A)(1)(b), and
murder, a violation of RC. 2903.02(B). The charges arose out
of the rape and subsequent death of D.J.'s three-year-old
sister, M.R.J., following a period of time in which she was
in his care. D.J. was fifteen years old at the time of the
offense. The juvenile court found that D.J. was a serious
youthful offender and committed him to the custody of the
Ohio Department of Youth Services ("ODYS") through
his twenty-first birthday. The juvenile court also imposed an
adult sentence on the rape charge of life imprisonment with
parole eligibility after twenty-five years pursuant to R.C.
2907.02(B), R.C. 2971.03(A)(2), and R.C. 2152.13(D)(1)(a),
but stayed the adult portion of the sentence pending
D.J.'s completion of the juvenile disposition. D.J.
filed, but voluntarily dismissed, an appeal from his
adjudication and disposition.
During the juvenile portion of his disposition, D.J. appeared
before the juvenile court for periodic dispositional reviews.
During these reviews, the juvenile court made findings that
reflected a mixed view of his progress. On October 7, 2016,
the State moved to invoke the adult portion of D.J.'s
sentence, arguing that he had not engaged in sex offender
treatment while in the custody of ODYS. Because D.J. was
within two months of his twenty-first birthday, the State
also moved for an expedited hearing on the motion. The
juvenile court granted the motion to invoke the adult
sentence on November 22, 2016, five days before D.J.'s
twenty-first birthday. In granting the motion, the juvenile
court emphasized D.J.'s failure to participate in sex
offender programming until January 2016 and his
"superficial" participation thereafter. The
juvenile court noted that "[D.J.]'s defiance and
failure to timely engage in treatment constitutes conduct
that demonstrates that [D.J.] has not been rehabilitated
during the course of his ODYS commitment and cannot complete
treatment so that he can safely enter the community in the
few days that remain before his 21st birthday." On
November 23, 2016, the trial court imposed the adult portion
of D.J.'s sentence.
D.J. appealed the juvenile court's order that granted the
State's motion to invoke the adult portion of his
sentence. The transcript in that direct appeal was filed with
the clerk of this Court on January 27, 2017. On January 31,
2018, while that appeal was pending, D.J. petitioned the
juvenile court for postconviction relief, asserting five
claims for relief. The juvenile court did not take any action
on the petition while the direct appeal was pending in this
Court. On February 13, 2018, this Court affirmed the juvenile
court's order that granted the State's motion to
invoke the adult portion of D.J.'s sentence. In re
D.J, 9th Dist. Summit No. 28472, 2018-Ohio-569. On
February 28, 2018, the juvenile court determined that upon
its initial review of the petition, D.J. would be allowed an
evidentiary hearing on claims one, two, four, and five, but
not on claim three. The juvenile court also ordered the
parties to submit briefs on claims one, two, and four. The
State moved to dismiss the petition, arguing that all of
D.J.'s claims for relief were barred by res judicata or
otherwise without merit. In response, D.J. conceded that
claims three and four could have been raised on direct
On June 29, 2018, the juvenile court ruled on D.J.'s
remaining claims for relief without having conducted an
evidentiary hearing, concluding that each was barred by res
judicata. D.J. filed this appeal. After oral argument on
April 2, 2019, this Court stayed the appeal and remanded it
to the juvenile court under App.R. 9(E) so that the clerk
could certify and transmit the complete record. Approximately
sixty days later, the clerk filed the record from the
juvenile court in this appeal. On June 17, 2019, this Court
reactivated the appeal and submitted it for decision.
THE TRIAL COURT ERRED IN DISMISSING CLAIMS ONE, TWO, AND FIVE
OF [D.J.]'S POST-CONVICTION PETITION ON RES
JUDICATA GROUNDS, BECAUSE THE CLAIMS RELIED UPON
EVIDENCE OUTSIDE THE RECORD.
In his only assignment of error, D.J. argues that the
juvenile court erred by concluding that each of his claims
for relief was barred by res judicata. This Court concludes
that D.J. did not comply with the timeliness requirements set
forth in R.C. 2953.21(A)(2), however, so the juvenile court
lacked jurisdiction to consider his untimely petition.
See State v.Jones, 10th Dist. Franklin No.
18AP-578, 2019-Ohio-1014, ¶ 12 (noting that a court ...