[Cite as State v. McKinney, 2011-Ohio-3521.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-11-01

        v.

DANIEL P. MCKINNEY,                                       OPINION

        DEFENDANT-APPELLANT.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 03-CR-08624

                                     Judgment Affirmed

                              Date of Decision: July 18, 2011




APPEARANCES:

        Daniel P. McKinney, Appellant

        Russell R. Herman for Appellee
Case No. 4-11-01



PRESTON, J.

          {¶1} Petitioner-appellant, Daniel P. McKinney (hereinafter “McKinney”),

pro se, appeals the judgment of the Defiance County Court of Common Pleas

denying his petition for post-conviction relief. For the reasons that follow, we

affirm.

          {¶2} On July 7, 2003, the Defiance County Grand Jury returned an

indictment against McKinney, charging him with the following five counts:

robbery, a felony of the second degree, in violation of R.C. 2911.02(A)(2);

aggravated theft, a felony of the third degree, in violation of R.C. 2913.02(A)(1)

and (4); receiving stolen property, a felony of the fourth degree, in violation of

R.C. 2913.51(A); failure to comply with order or signal of police officer, a felony

of the third degree, in violation of R.C. 2921.331(C)(5)(a)(ii); and failure to

comply with an order or signal of police officer, a felony of the fourth degree, in

violation of R.C. 2921.331(C)(4).

          {¶3} On January 20, 2004, the matter was heard by a jury. During the trial,

McKinney moved for two judgments of acquittal, which were both denied. After

four days of trial testimony, the jury retired on January 23, 2004. Later that

evening, the jury found him guilty on all five counts. McKinney subsequently

filed a motion for a new trial, which was denied.



                                          -2-
Case No. 4-11-01



       {¶4} On March 15, 2004, a sentencing hearing was held, at which time, the

trial court sentenced McKinney to the following: eight (8) years imprisonment on

count one; four (4) years imprisonment on count two; one and a half (1½) years

imprisonment on count three; five (5) years imprisonment on count four; and one

and a half (1½) years imprisonment on count five. All sentences were ordered to

run consecutively to one another, for a total of twenty (20) years imprisonment.

       {¶5} McKinney appealed his conviction and sentence to this Court. On

October 18, 2004, this Court found that McKinney’s conviction for an additional

charge of receiving stolen property was not supported by sufficient evidence.

State v. McKinney, 3d Dist. No. 4-04-12, 2004-Ohio-5518, ¶¶51-59. As a result,

we reversed and remanded the case to the trial court for purposes of re-sentencing

McKinney without the additional receiving stolen property conviction. Id. at ¶64.

       {¶6} On December 20, 2004, McKinney filed a petition for post-conviction

relief. On January 11, 2005, the State filed its response in opposition and a motion

to dismiss McKinney’s petition for post-conviction relief. On January 24, 2005,

McKinney filed his response to the State’s motions.

       {¶7} On January 27, 2005, McKinney was re-sentenced to the following:

eight (8) years imprisonment on count one; four (4) years imprisonment on count

two; five (5) years imprisonment on count four; and one and a half (1½) years

imprisonment on count five.         All sentences were ordered to be served

                                        -3-
Case No. 4-11-01



consecutively to one another, for a total of eighteen and a half (18½) years

imprisonment.

       {¶8} On February 23, 2005, the trial court denied the post-conviction

petition without a hearing, finding that it was barred by res judicata and that it

failed to otherwise demonstrate substantive grounds for relief.

       {¶9} On February 10, 2011, McKinney filed his notice of appeal on the trial

court’s denial of his petition for post-conviction relief.

       {¶10} McKinney now appeals and raises the following two assignment of

error. For ease of our discussion, we elect to address his assignments of error

together.

                        ASSIGNMENT OF ERROR NO. I

       APPELLANT MCKINNEY WAS DENIED DUE PROCESS
       AND EQUAL PROTECTION OF THE LAW, AS
       GUARANTEED BY THE OHIO CONSTITUTION AND THE
       CONSTITUTION OF THE UNITED STATES, WHERE HE
       WAS DENIED THE PROTECTED LIBERTY INTEREST OF
       AN EVIDENTIARY HEARING ON HIS PETITION FOR
       POST CONVICTION RELIEF UNDER R.C. §§ 2953.21 et seq
       [SIC].

                       ASSIGNMENT OF ERROR NO. II

       APPELLANT MCKINNEY WAS DENIED DUE PROCESS
       AND EQUAL PROTECTION OF LAW, AS GUARANTEED
       BY THE OHIO CONSTITUTION AND THE CONSTITUTION
       OF THE UNITED STATES, WHERE HE WAS DENIED THE
       PROTECTED LIBERTY INTEREST OF JUDICIAL REVIEW


                                          -4-
Case No. 4-11-01



          OF HIS PETITION FOR POST CONVICTION RELIEF AS
          MANDATED BY R.C. § 2953.21(C).

          {¶11} Under his first and second assignments of error, McKinney argues

that he was entitled to an evidentiary hearing on his petition for post-conviction

relief.     McKinney also argues that the trial court erred in not properly

“adjudicating” the merits of his motion.

          {¶12} In response, the State first argues that McKinney failed to comply

with App.R. 4(A), and thus, this Court lacks jurisdiction to review the case. In

addition, the State claims that even if we were to find that we have jurisdiction,

McKinney’s arguments are barred by the doctrine of res judicata. As a final

matter, the State also asserts that the trial court did not err and properly reviewed

and adjudicated McKinney’s motion for post-conviction relief.

          {¶13} As an initial matter, we note that it appears that McKinney’s petition

for post-conviction relief may have been untimely. However, neither party nor the

trial court addressed this particular issue, and given the passage of time and the

issues concerning the record, which we will discuss in further detail below, we

find that we are unable to accurately determine whether McKinney’s petition was,

in fact, untimely. As such, we will address the merits of McKinney’s appeal.

          {¶14} The first issue that was presented before this Court on appeal is

whether, as the State asserts, this Court lacks jurisdiction to hear McKinney’s


                                           -5-
Case No. 4-11-01



appeal because McKinney filed this appeal several years after the trial court

denied his petition for post-conviction relief. App.R. 4(A) provides:

       A party shall file the notice of appeal required by App.R. 3
       within thirty days of the later of entry of the judgment or order
       appealed or, in a civil case, service of the notice of judgment and
       its entry if service is not made on the party within the three day
       period in Rule 58(B) of the Ohio Rules of Civil Procedure.

A party’s failure to comply with App.R. 4(A)’s thirty-day filing deadline deprives

this Court of jurisdiction. Advantage Bank v. Waldo Pub, L.L.C., 3d Dist. No. 9-

08-67, 2009-Ohio-2816, ¶62, citing State ex rel. Pendell v. Adams County Bd. of

Elections (1988), 40 Ohio St.3d 58, 531 N.E.2d 713. See, also, State v. Byrd, 3d

Dist. Nos. 4-05-17, 4-05-18, 2005-Ohio-5613.

       {¶15} At first glance, it would appear that McKinney’s appeal is time

barred since the trial court denied McKinney’s petition for post-conviction relief

on February 23, 2005, but McKinney did not file his appeal until February 10,

2011. However, in McKinney’s uncontroverted affidavit to this Court, he argues

that the time for filing his appeal under App.R. 4 was tolled because he was never

served with the trial court’s judgment entry denying his petition for post-

conviction relief. McKinney states that, at the time he filed his petition for post-

conviction relief, he was incarcerated at the Lebanon Correctional Institution, but

that the clerk of court erroneously recorded that he was at the Ohio Department of

Rehabilitation and Corrections in Orient, Ohio. McKinney argues that the record

                                        -6-
Case No. 4-11-01



clearly shows that service of the judgment entry denying his petition for post-

conviction relief was sent to the correctional facility at Orient, Ohio, and not the

Lebanon Correctional Institution.

      {¶16} Civ.R. 58(B) provides:

      When the court signs a judgment, the court shall endorse
      thereon a direction to the clerk to serve upon all parties not in
      default for failure to appear notice of the judgment and its date
      of entry upon the journal. Within three days of entering the
      judgment upon the journal, the clerk shall serve the parties in a
      manner prescribed by Civ. R. 5(B) and note the service in the
      appearance docket. Upon serving the notice and notation of the
      service in the appearance docket, the service is complete. The
      failure of the clerk to serve notice does not affect the validity of
      the judgment or the running of the time for appeal except as
      provided in App. R. 4(A).

(emphasis added). The Ohio Supreme Court has stated:

      “In those cases in which both Civ.R. 58(B) and App.R. 4(A) are
      applicable, if service of the notice of judgment and its entry is
      made within the three-day period of Civ.R. 58(B), the appeal
      period begins on the date of judgment, but if the appellants are
      not served with timely notice, the appeal period is tolled until the
      appellants have been served. In re Anderson (2001), 92 Ohio
      St.3d 63, 67, 748 N.E.2d 67. Consequently, App.R. 4(A) “tolls the
      time period for filing a notice of appeal * * * if service is not
      made within the three-day period of Civ.R. 58(B).”

State ex rel. Sautter v. Grey, 117 Ohio St.3d 465, 2008-Ohio-1444, 884 N.E.2d

1062, ¶16, quoting State ex rel. Hughes v. Celeste (1993), 67 Ohio St.3d 429, 431,

619 N.E.2d 412.



                                        -7-
Case No. 4-11-01



       {¶17} The record in this case shows that McKinney was never properly

served with the judgment entry denying his petition for post-conviction relief.

McKinney’s last known address was at the Lebanon Correctional Institution. We

note that several pleadings were filed by McKinney prior to the trial court’s denial

of his petition, which list McKinney’s address as Lebanon Correctional Institution.

However, the docket reflects that service of this judgment entry was attempted at

the Corrections Center of Northwest Ohio, not the Lebanon Correctional

Institution.   Consequently, even though the trial court ruled on McKinney’s

petition for post-conviction relief in February 2005, because McKinney was never

served with notice of its decision, we conclude that McKinney’s appeal is timely,

and that we have jurisdiction to hear the matter.

       {¶18} With respect to the merits of McKinney’s petition for post-conviction

relief, a petitioner who seeks to challenge his conviction through a petition for

post-conviction relief is not automatically entitled to a hearing. State v. Jackson

(1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. The test is whether there are

substantive grounds for relief that would warrant a hearing based upon the

petition, the supporting affidavits, and the files and records in the case. State v.

Strutton (1988), 62 Ohio App.3d 248, 251, 575 N.E.2d 466, citing Jackson, 64

Ohio St.2d at 110. “Where a petition for post conviction remedy under R.C.

2953.21 alleges grounds for relief, and the record of the original criminal

                                         -8-
Case No. 4-11-01



prosecution does not fully rebut the allegations, the petitioner is entitled to an

evidentiary hearing in which he is provided an opportunity to prove his

allegations.” State v. Bays (Jan. 30, 1998), 2nd Dist. No. 96-CA-118, at *2, citing

State v. Williams (1966), 8 Ohio App.2d 135, 136, 220 N.E.2d 837. However, if it

is determined that there are no substantive grounds for relief, the trial court may

dismiss the petition without an evidentiary hearing. State v. Howald, 3d Dist. No.

14-08-23, 2008-Ohio-5404, ¶10, citing State v. Smith, 3d Dist. No. 1-04-50, 2004-

Ohio-6190, ¶9, citing State v. Calhoun (1999), 86 Ohio St.3d 279, 282-83, 714

N.E.2d 905; State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169.

      {¶19} In reviewing whether the trial court erred in denying a petitioner’s

motion for post-conviction relief without a hearing, this Court applies an abuse of

discretion standard. Howald, 2008-Ohio-5404, at ¶12, citing State v. Campbell,

10th Dist. No. 03AP-147, 2003-Ohio-6305, ¶14, citing Calhoun, 86 Ohio St.3d at

284. An abuse of discretion connotes more than an error of judgment; rather, it

implies that the trial court acted unreasonably, arbitrarily, or unconscionably.

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶20} Nevertheless, “a post-conviction relief hearing is not warranted for

claims that were raised or could have been raised on direct appeal.” State v.

Yarbrough (Apr. 30, 2001), 3d Dist. No. 17-2000-10, at *4, citing State v.

Reynolds (1997), 79 Ohio St.3d 158, 161, 679 N.E.2d 1131. “The principle of res

                                        -9-
Case No. 4-11-01



judicata will operate as a bar to any claim that was raised or could have been

raised on direct appeal.” Id., citing State v. Lentz (1994), 70 Ohio St.3d 527, 639

N.E.2d 784 and State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104,

syllabus. In his petition, and on appeal, McKinney argues that he was denied his

Sixth Amendment right to be present at all critical stages of the proceedings, and

that he was denied the right to have effective assistance of counsel. However,

these claims contain issues McKinney was aware of, or should have been aware

of, at the time of his direct appeal. Here, McKinney failed to raise the issue

regarding his right to be present at all critical stages of the proceedings in his

direct appeal, and in fact, did raise the issue regarding his ineffective assistance of

trial counsel in his direct appeal. In his direct appeal, this Court considered and

ultimately rejected McKinney’s ineffective assistance of trial counsel arguments.

McKinney, 2004-Ohio-5518, ¶¶60-63. As we stated in his direct appeal, “[i]n the

instant case, there is nothing in the record that indicates (1) that the stand-by

counsels were deficient and (2) that, if they were deficient, but for their

deficiencies, the result of the trial would have been different.”         Id. at ¶62.

Therefore, McKinney’s post-conviction petition was barred by res judicata, and

the trial court was not required to hold an evidentiary hearing. Yarbrough at *4,

citing Reynolds, 79 Ohio St.3d at 161; Lentz, 70 Ohio St.3d 527; Perry, 10 Ohio

St.2d 175, syllabus.

                                         -10-
Case No. 4-11-01



       {¶21} Even if McKinney’s petition was not barred by res judicata,

McKinney nevertheless failed to demonstrate substantive grounds for relief in his

petition. With respect to McKinney’s claim that he was denied his right to be

present at all critical stages of the proceedings, McKinney alleges that a private

meeting occurred on December 1, 2003 outside the official court proceeding

which was done in an attempt to subvert his constitutional rights. An accused has

a fundamental right to be present at all critical stages of her criminal trial. Section

10, Article I, Ohio Constitution; Crim.R. 43(A). Yet, an accused’s absence does

not automatically result in prejudicial or constitutional error. State v. Brinkley,

105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶117. Here, McKinney

claims that there was a private meeting on December 1, 2003 outside of his

presence. However, the documents submitted by McKinney in support of his post-

conviction petition actually demonstrate that he was present at this hearing, which

was held in response to several pro se motions he filed, even though he was

represented by defense counsel at the time of his filings. Thus, McKinney has

failed to demonstrate prejudice.

       {¶22} In addition, as we stated above, not only have we already addressed

and rejected McKinney’s ineffective assistance of trial counsel arguments, but

McKinney has not submitted any “evidentiary documents containing sufficient

operative facts” to demonstrate his ineffective assistance of trial counsel claim for

                                         -11-
Case No. 4-11-01



purposes of his petition for post-conviction relief. Rather, McKinney has made

broad conclusory statements which do not meet the threshold for requiring an

evidentiary hearing. State v. Pankey (1981), 68 Ohio St.2d 58, 59, 428 N.E.2d

413.

       {¶23} Therefore, for all of the above reasons, we find that the trial court did

not err in denying McKinney’s petition for post-conviction relief without

conducting a hearing.

       {¶24} McKinney’s first and second assignments of error are, therefore,

overruled.

       {¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

ROGERS, P.J. and SHAW, J., concur.

/jlr




                                        -12-
