[Cite as State v. Dilley, 2013-Ohio-4480.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99680




                                        STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   WILLIAM D. DILLEY
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-558185

        BEFORE: Keough, J., Stewart, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                     October 10, 2013
APPELLANT

William D. Dilley, Pro Se
11720 Regent Park Drive
Chardon, Ohio 44024


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: James M. Price
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, William Dilley (“Dilley”), appeals from the trial

court’s judgment summarily denying his petition for postconviction relief.         For the

reasons that follow, we affirm.

       {¶2} In January 2012, Dilley was charged with one count each of tampering with

records, perjury, attempted theft, and theft. Dilley was a financial advisor who counseled

clients about their investments and procured investments for them.        One of Dilley’s

clients was Betty Montgomery, a 92-year-old woman who suffered from dementia. The

charges stemmed from Dilley’s participation in amending Montgomery’s trust to make

him the sole beneficiary of the trust.

       {¶3} At the close of the state’s case at trial, the trial court granted Dilley’s

Crim.R. 29 motion for acquittal as to Count 4 (theft) and denied the motion with respect

to the other counts. The trial court subsequently found Dilley guilty of tampering with

records, perjury, and attempted theft, and sentenced him to two years on each count, to be

served concurrently.

       {¶4} This court affirmed Dilley’s convictions on direct appeal. State v. Dilley,

8th Dist. Cuyahoga No. 98098, 2012-Ohio-5288.

       {¶5} Dilley subsequently filed a petition for postconviction relief, which the trial

court summarily denied. Dilley appeals from that judgment, raising several assignments

of error for our review.

I.     Findings of Fact and Conclusions of Law
       {¶6} In his first assignment of error, Dilley contends that the trial court violated

his due process rights by denying his petition without making findings of fact and

conclusions of law.

       {¶7} R.C. 2953.21 governs postconviction relief petitions. R.C. 2953.21(C) and

(G) require a trial court to make and file findings of fact and conclusions of law setting

forth its findings on the issues presented and a substantive basis for its disposition of each

claim for relief advanced in the petition.    State v. Kinstle, 3d Dist. Allen No. 1-12-32,

2013-Ohio-850, ¶ 10. “Findings of fact and conclusions of law are mandatory under

R.C. 2953.21 if the trial court dismisses the petition.” State ex rel. Carrion v. Harris, 40

Ohio St.3d 19, 530 N.E.2d 1330 (1988), citing State v. Lester, 41 Ohio St.2d 51, 322

N.E.2d 656 (1975), paragraph two of the syllabus. See also State v. Calhoun, 86 Ohio

St.3d 279, 1999-Ohio-102, 714 N.E.2d 905.

       {¶8} The purpose of requiring findings of fact and conclusions of law is to

apprise the petitioner of the basis for the court’s disposition and to facilitate meaningful

appellate review. Carrion at 19. A trial court “need not discuss every issue raised by

appellant or engage in an elaborate and lengthy discussion in its findings of fact and

conclusions of law. The findings need only be sufficiently comprehensive and pertinent

to the issue to form a basis upon which the evidence supports the conclusion.” Calhoun

at 291-292.

       {¶9}   A trial court need not issue findings of fact and conclusions of law,

however, when it dismisses an untimely postconviction relief petition. State ex rel.
James v. Coyne, 114 Ohio St.3d 45, 2007-Ohio-2716, 867 N.E.2d 837, ¶ 5. Under R.C.

2953.21(A)(1)(c)(2), a petition must be filed no later than 180 days after the date on

which the trial transcript is filed in the court of appeals in the direct appeal of the

conviction, or if no appeal is taken, no later than 180 days after the expiration of time for

filing the appeal. Here, the trial transcript was filed in the court of appeals in Dilley’s

direct appeal on April 24, 2012. He filed his postconviction petition on October 23,

2012, 182 days after the trial transcript was filed. Accordingly, because the petition was

untimely, the trial court was not required to issue findings of fact and conclusions of law

when it denied Dilley’s petition.

       {¶10} Moreover, the trial court properly dismissed Dilley’s petition because it was

untimely. The time limit for filing a motion for postconviction relief is jurisdictional.

State v. John, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162, ¶ 8, and a trial court has no

authority to consider an untimely filed petition for postconviction relief absent certain

exceptions. 1 State v. Hutton, 8th Dist. Cuyahoga No. 80763, 2007-Ohio-5443, ¶ 23.

Dilley had 180 days from the date the transcript was filed to file his petition. He did not

do so, nor did he demonstrate that he was unavoidably prevented from discovering facts

relating to his petition or that any new federal or state right applied. Therefore, because

his petition was filed beyond the statutory timeline, it was properly denied.


         R.C. 2953.23 provides that a court may not consider an untimely petition unless the petitioner
       1


demonstrates that he was unavoidably prevented from discovering facts relating to his petition, or that
after the expiration of the time period, the United States Supreme Court recognized a new federal or
state right, and that absent the constitutional error, he would not have been found guilty.
II.    Probate Court Judgment

       {¶11}       After learning of Dilley’s involvement regarding the amended trust,

Dilley’s employer terminated his employment and filed an interpleader action regarding

the validity of the amended trust. The parties reached a settlement agreement whereby

the trust assets were distributed to the individuals and charitable organizations named in

the original trust, and Dilley received $75,000 from the trust and remained as trustee of

the trust (that no longer has any assets). On September 2, 2010, the probate court entered

a final judgment ordering that the parties’ claims were settled and dismissed with

prejudice, pursuant to the terms of the parties’ settlement agreement. Citigroup Global

Markets, Inc. v. Estate of Betty Montgomery, Cuyahoga C.P. No. 2009 ADV 0146836,

(Sept. 2, 2010).

       {¶12} In his second assignment of error, Dilley argues that the trial court erred in

denying his postconviction petition because the probate court’s final judgment in the

Citigroup matter determined that the amended trust was valid and, thus, under the

doctrine of collateral estoppel, barred any further proceeding involving the validity of the

amended trust. Accordingly, he contends that the state was prohibited from criminally

prosecuting him, and that his criminal prosecution was in violation of various rights under

the United States and Ohio Constitutions.

       {¶13} The trial court properly denied this claim because Dilley’s petition was

untimely. In addition, the claim is barred by the doctrine of res judicata.

       Under the doctrine of res judicata, a final judgment of conviction bars a
       convicted defendant who was represented by counsel from raising and
       litigating in any proceeding except an appeal from that judgment, any
       defense or any claimed lack of due process that was raised or could have
       been raised by the defendant at the trial, which resulted in that judgment or
       conviction, or an appeal from that judgment.

State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982), citing State v. Perry, 10

Ohio St.2d 175, 226 NE.2d 104 (1967).

       {¶14} It is well settled that the doctrine of res judicata applies in postconviction

relief proceedings. State v. Blalock, 8th Dist. Cuyahoga No. 94198, 2010-Ohio-4494, ¶

19. Thus, a defendant may not raise any issue in a motion for postconviction relief if he

could have raised the issue on direct appeal. State v. Reynolds, 79 Ohio St.3d 158,

1997-Ohio-304, 679 N.E.2d 1131.

       {¶15} Because Dilley could have raised this argument in his direct appeal, it is

barred by res judicata.

III.   Dilley’s Other Claims

       {¶16} In his third assignment of error, Dilley contends that the trial court erred in

denying his postconviction petition because his trial counsel was ineffective, in violation

of his constitutional right to effective assistance of counsel. In his fourth assignment of

error, Dilley contends that the trial court erred in admitting his deposition from the

probate case at his criminal trial.

       {¶17} Both of these claims, however, were ripe for review in Dilley’s direct

appeal. Because Dilley could have raised these claims in his direct appeal, they are barred

by res judicata.
       {¶18} The trial court properly denied Dilley’s petition. The petition automatically

failed because it was untimely and, in the alternative, the claims were barred by res

judicata. The first, second, third, and fourth assignments of error are therefore overruled.

       {¶19} Affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
