[Cite as State v. Greathouse, 2011-Ohio-4012.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :        C.A. CASE NO. 24084

v.                                                       :        T.C. NO.   05CR852

TERRANCE L. GREATHOUSE                                   :         (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellant                       :

                                                         :

                                                 ..........

                                            OPINION

                         Rendered on the          12th   day of   August     , 2011.

                                                 ..........

TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

TERRANCE L. GREATHOUSE, #516-781, Ross Correctional Institute, P. O. Box 7010,
Chillicothe, Ohio 45601
        Defendant-Appellant

                                                 ..........

DONOFRIO, J. (by assignment)

        {¶ 1} Defendant-appellant,               Terrance     Greathouse,    appeals       from   a

Montgomery County Common Pleas Court judgment denying his petition for

postconviction relief.

        {¶ 2} This case stems back to appellant’s conviction on charges of
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kidnapping, rape, two counts of aggravated robbery, intimidation of a crime victim,

and firearm specifications. Upon his conviction, the trial court sentenced appellant

to a total of 50 years in prison. Appellant’s case was first before this court in 2007,

on direct appeal from his conviction and sentence.             State v. Greathouse,

Montgomery App. No. 21536, 2007-Ohio-2136 (Greathouse 1). This court affirmed

appellant’s convictions but reversed his sentence and remanded the matter for

resentencing. On remand, the trial court once again imposed a total prison term of

50 years.

       {¶ 3} While his direct appeal was pending, appellant filed his first

postconviction petition.   In his petition, appellant argued that his sentence was

unconstitutional and should be reversed.       The trial court dismissed appellant’s

petition.

       {¶ 4} Appellant filed his second postconviction petition in 2008. In this

petition, appellant argued that R.C. 2953.23 was unconstitutional, that his

indictment was defective, and that he received ineffective assistance of counsel at

the trial level. The trial court once again dismissed appellant's petition. This led to

another     appeal.     State   v.   Greathouse,   Montgomery       App.   No.   23259,

2010-Ohio-1617 (Greathouse 2). This court affirmed the trial court’s dismissal of

appellant’s petition.

       {¶ 5} Appellant filed his third petition for postconviction relief in February

2010. Once again, the trial court overruled appellant’s petition.

       {¶ 6} On April 27, 2010, appellant filed his fourth petition for postconviction

relief, which he termed a Civ.R. 60(B)(5) petition. In this petition, appellant alleged
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that his trial counsel was ineffective for failing to investigate his competency and

failing to request a competency hearing, the trial court erred in failing to investigate

his competency, and the state violated his rights by failing to appoint him counsel.

       {¶ 7} The trial court once again treated appellant’s petition as one for

postconviction relief.    It determined that appellant’s petition was untimely.

Furthermore, it found that appellant failed to show that he was unavoidably

prevented from discovery of the facts upon which he relies to present his claims for

relief. It noted that all of appellant’s allegations related to his competency, which is

an issue within his personal knowledge.        Next, the court found that it lacked

jurisdiction over the petition because it was appellant’s fourth postconviction petition

and he failed to demonstrate extraordinary circumstances as required by statute in

order for a court to consider a second or successive postconviction petition. And

the court found that appellant’s claims were barred by the doctrine of res judicata

because competency claims were raised in his direct appeal. Finally, the court

found that for the above stated reasons, appellant was not entitled to a hearing on

his petition. Consequently, it overruled and dismissed appellant’s petition.

       {¶ 8} Appellant filed a timely notice of appeal on June 7, 2010.

       {¶ 9} On appeal, this court must affirm a trial court's decision granting or

denying a postconviction petition absent an abuse of discretion. State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, at ¶58. Abuse of discretion connotes more

than an error of law or judgment; it implies that the court's attitude in unreasonable,

arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. “[A]

reviewing court should not overrule the trial court's finding on a petition for
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postconviction relief that is supported by competent and credible evidence.” Id .

       {¶ 10} The timeliness of appellant’s petition must be addressed.            The

requirement that a petition for postconviction relief be timely filed is jurisdictional.

R.C. 2953.23(A) (“a court may not entertain a petition filed after the expiration of the

period prescribed [in R.C. 2953.21]”). Unless the petition is timely filed, the court is

not permitted to consider the substantive merits of the petition. State v. Beaver

(1998), 131 Ohio App.3d 458, 461 (the trial court should have summarily dismissed

appellant's untimely petition without addressing the merits).

       {¶ 11} If a postconviction relief petition is filed beyond the 180-day time

limitation or the petition is a second or successive petition for postconviction relief,

R.C. 2953.23(A) precludes the court from entertaining the petition unless: (1) the

petitioner shows that he was unavoidably prevented from discovering the facts

upon which his claim for relief is based, or (2) after the 180-day time period expired,

the United States Supreme Court recognized a new federal or state right that

applies retroactively to the petitioner and is the basis of his claim for relief. R.C.

2953.23(A)(1)(a).    The petitioner must then show “by clear and convincing

evidence that, but for constitutional error at trial, no reasonable fact finder would

have found [him] guilty of the offense of which [he] was convicted.” R.C.

2953.23(A)(1)(b).

       {¶ 12} Unless the defendant makes the showings required by R.C.

2953.23(A), the trial court lacks jurisdiction to consider either an untimely or a

second or successive petition for postconviction relief. State v. Carter, Clark App.

No. 03-CA-11, 2003-Ohio-4838, citing State v. Beuke (1998), 130 Ohio App.3d 633.
                                                                                      5

       {¶ 13} In this case, appellant's petition was unquestionably filed well beyond

the 180-day time limit set forth in R.C. 2953.21. Furthermore, this was appellant’s

fourth successive postconviction petition.

       {¶ 14} Appellant failed to meet either of the specifically enumerated

timeliness exceptions under R.C. 2953.23. He did not allege that after his 180-day

time period expired, the Supreme Court recognized a new federal or state right that

applies retroactively to him and is the basis of his claim for relief. And while he

alleged that he was unavoidably prevented from discovering the facts upon which

his claim for relief is based, the facts upon which he relied in support were within

his personal knowledge as they all dealt with his competency. Competency claims

were also raised in his direct appeal showing prior knowledge and res judicata also

bars this claim.

       {¶ 15} Therefore, appellant's petition was untimely and the trial court was

without jurisdiction to entertain it.

       {¶ 16} Appellant raises four assignments of error. They state, respectively:

       {¶ 17} “THE TRIAL COURT ABUSED IT’S [sic.] DISCRETION W[H]EN IT

DENIED HIS APPEAL PURSUANT TO CRIM.R. 33(3&6).”

       {¶ 18} “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL WHEN HE FAILED TO INVESTIGATE AND INQUIRE INTO THE

COMPETENCE OF HIS CLIENT IN VIOLATION OF HIS 5TH, 6TH, 8TH, AND

14TH AMENDMENT TO THE UNITED STATES CONSTITUTION.”

       {¶ 19} “TRIAL COURT ERRED WHEN IT FAILED TO INQUIRE INTO THE

COMPETENCY OF THE DEFENDANT IN VIOLATION OF HIS 5TH, 6TH, 8TH,
                                                                                     6

AND 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION[,] THE

OHIO CONSTITUTION[,] AND R.C. 2945.37(B).”

       {¶ 20} “THE DEFENDANT’S RIGHTS WERE VIOLATED WHEN HE WAS

NOT APPOINTED APPELLATE COUNSEL TO REPRESENT HIM THROUGH ALL

HIS APPEALS ONCE COUNSEL WAS INFORMED THAT THE DEFENDANT

WAS MENTALLY INCOMPETENT AND ILLITERATE IN VIOLATION OF THE 6TH,

8TH, AND 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION.”

       {¶ 21} Because we have already determined that the trial court lacked

jurisdiction to entertain appellant’s postconviction petition, his assignments of error

are moot.

       {¶ 22} For the reasons stated above, the trial court’s judgment is hereby

affirmed.



                                     ..........

GRADY, P.J. and HALL, J., concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Timothy J. Cole
Terrance L. Greathouse
Hon. Mary Katherine Huffman
