[Cite as State v. Sheldon, 2016-Ohio-6984.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              BROWN COUNTY




STATE OF OHIO,                                     :
                                                           CASE NO. CA2016-04-010
        Plaintiff-Appellee,                        :
                                                                    OPINION
                                                   :                 9/26/2016
    - vs -
                                                   :

JEREMY SHELDON,                                    :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                           Case No. 2012 CR 2193



Jessica Little, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street,
Suite 2, Georgetown, Ohio 45121, for plaintiff-appellee

Jeremy Sheldon, #A696008, Richland Correctional Institution, 1001 Olivesburg Road, P.O.
Box 8107, Mansfield, Ohio 44901, defendant-appellant, pro se



        S. POWELL, J.

        {¶ 1} Petitioner-appellant, Jeremy Sheldon, appeals from the decision of the Brown

County Court of Common Pleas denying his petition for postconviction relief. For the reasons

outlined below, we affirm.

                                     Facts and Procedural History

        {¶ 2} On July 19, 2012, the Brown County Grand Jury returned an indictment
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charging Sheldon with five counts of rape in violation of R.C. 2907.02(A)(1)(b), all first-degree

felonies. The charges were based on allegations Sheldon raped his minor daughter, M.S.,

on five separate occasions between October 2008 and June 2012. At the time the rapes

occurred, M.S. was between the ages of seven and twelve years old.

       {¶ 3} On October 21, 2013, a jury found Sheldon guilty of all five counts of rape.

Thereafter, on November 27, 2013, the trial court then held a sentencing hearing and

sentenced Sheldon to life in prison without the possibility of parole. The trial court also

designated Sheldon a Tier III sex offender. This court affirmed Sheldon's conviction on direct

appeal, a decision the Ohio Supreme Court declined to review. State v. Sheldon, 12th Dist.

Brown No. CA2013-12-018, 2014-Ohio-5488, appeal not accepted, 142 Ohio St.3d 1453,

2015-Ohio-1591.

       {¶ 4} On February 18, 2016, 651 days after the trial transcript was filed with this court

in Sheldon's direct appeal, Sheldon filed a petition for postconviction relief, a motion

requesting the appointment of counsel, and a motion for funds to procure an expert witness.

In support of his petition, Sheldon argued that he received ineffective assistance of counsel

when his trial counsel advised both him and his father that he should reject the state's plea

offer because he had a "sure win" at trial. Sheldon also alleged that his trial counsel

misinformed both him and his father that his "maximum exposure" if he was convicted at trial

would be "15 to life, with parole likely after serving 15 years." Sheldon attached affidavits

from both he and his father averring the same. Sheldon further argued that the state failed to

provide him with certain Brady material prior to trial in regards to one of the state's expert

witnesses, Dr. Robert Shapiro, a physician with the Cincinnati Children's Hospital.

       {¶ 5} On March 21, 2016, the state filed a motion to dismiss Sheldon's petition for

postconviction relief on the basis that it was untimely, barred by the doctrine of res judicata,

and otherwise without merit. Shortly thereafter, upon finding an evidentiary hearing was not
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necessary, the trial court issued a decision denying Sheldon's petition. In so holding, the trial

court found Sheldon's petition was untimely and barred by the doctrine of res judicata. The

trial court also determined the affidavits from Sheldon and his father that were attached to

Sheldon's petition "border on absurdity" and "have little or no credibility." The trial court

further denied Sheldon's request for the appointment of counsel and for funds to procure an

expert witness.

       {¶ 6} Sheldon now appeals from the trial court's decision, raising seven assignments

of error for review.

                                     Standard of Review

       {¶ 7} A postconviction proceeding is not an appeal of a criminal conviction, but

rather, a collateral civil attack on a criminal judgment. State v. Bayless, 12th Dist. Clinton

Nos. CA2013-10-020 and CA2013-10-021, 2014-Ohio-2475, ¶ 8, citing State v. Calhoun, 86

Ohio St.3d 279, 281 (1999). Initial petitions for postconviction relief are governed by R.C.

2953.21, which provides three methods for adjudicating the petition. State v. Chamberlain,

12th Dist. Brown No. CA2015-03-008, 2015-Ohio-2987, ¶ 5. Specifically, when a criminal

defendant challenges his conviction through a postconviction relief petition, the trial court

may (1) summarily dismiss the petition without holding an evidentiary hearing pursuant to

R.C. 2953.21(C), (2) grant summary judgment on the petition to either party who moved for

summary judgment pursuant to R.C. 2953.21(D), or (3) hold an evidentiary hearing on the

issues raised by the petition pursuant to R.C. 2953.21(E). State v. Francis, 12th Dist. Butler

No. CA2014-09-187, 2015-Ohio-2221, ¶ 10.

       {¶ 8} "An evidentiary hearing is not automatically guaranteed each time a defendant

files a petition for postconviction relief." State v. Suarez, 12th Dist. Warren No. CA2014-02-

035, 2015-Ohio-64, ¶ 10. Rather, as noted by the Ohio Supreme Court, pursuant to R.C.

2953.21(C), "a trial court properly denies a defendant's petition for postconviction relief
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without holding an evidentiary hearing where the petition, the supporting affidavits, the

documentary evidence, the files, and the records do not demonstrate that petitioner set forth

sufficient operative facts to establish substantive grounds for relief." Calhoun, 86 Ohio St.3d

at paragraph two of the syllabus. Substantive grounds for relief exist where there was a

denial or infringement of the petitioner's constitutional rights so as to render the judgment

void or voidable. State v. Clark, 12th Dist. Warren No. CA2008-09-113, 2009-Ohio-2101, ¶

8.

       {¶ 9} "A trial court's decision to summarily deny a postconviction petition without

holding an evidentiary hearing pursuant to R.C. 2953.21(C) will not be reversed absent an

abuse of discretion." State v. Simon, 12th Dist. Butler No. CA2014-12-255, 2015-Ohio-2989,

¶ 11. "The term 'abuse of discretion' connotes more than an error of law or of judgment; it

implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v.

Thornton, 12th Dist. Clermont No. CA2012-09-063, 2013-Ohio-2394, ¶ 34. A decision is

unreasonable when it is "unsupported by a sound reasoning process." State v. Abdullah,

10th Dist. Franklin No. 07AP-427, 2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River

Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161 (1990).

                             Sheldon's Assignments of Error

       {¶ 10} Assignment of Error No. 1:

       {¶ 11} THE TRIAL COURT ERRED BY NOT GRANTING THE PETITIONER'S

[PETITION FOR POSTCONVICTION RELIEF] BECAUSE THE PETITIONER WAS NOT

GIVEN ANY REASONABLE TIME TO RESPOND TO THE STATE'S MOTION TO DISMISS

THE [PETITION] BEFORE THE TRIAL COURT RULED ON THE MOTION, AS WAS

REQUIRED BY THE DUE PROCESS OF LAW, AND THE EQUAL PROTECTION CLAUSE

OF BOTH THE OHIO AND U.S. CONSTITUTIONS.

       {¶ 12} In his first assignment of error, Sheldon argues the trial court erred by issuing
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its decision summarily denying his petition without first allowing him to file a reply to the

state's motion to dismiss. However, nothing within Ohio's postconviction relief statute, R.C.

2953.21, specifies that a petitioner shall "be given an opportunity to reply to any motion filed

on behalf of the respondent." State v. Caldero, 8th Dist. Cuyahoga No. 83729, 2004-Ohio-

2337, ¶ 5. Rather, as this court has stated previously, "a trial court may dismiss a [petition for

posconviction relief] without affording the defendant an opportunity to file any supplemental

or responsive pleading where the petition fails to set forth any substantive ground upon which

relief can be granted." In re J.B., 12th Dist. Butler Nos. CA2005-06-176, CA2005-07-193,

and CA2005-08-377, 2006-Ohio-2715, ¶ 48. Therefore, the trial court did not err by taking

action on Sheldon's petition without first allowing him to file a reply to the state's motion to

dismiss. Accordingly, Sheldon's first assignment of error is without merit and overruled.

        {¶ 13} Assignment of Error No. 2:

        {¶ 14} THE TRIAL COURT ERRED IN RULING THE PETITION WAS NOT TIMELY

FILED.

        {¶ 15} In his second assignment of error, Sheldon argues the trial court erred by

finding his petition was untimely filed. However, regardless of whether the former 180-day

time limit or the newly extended 365-day time limit for the filing of a petition for postconviction

applies, the fact remains that Sheldon filed his petition for postconviction relief on February

18, 2016, 651 days after the trial transcript was filed with this court in his direct appeal, thus

rendering it, at best, 286 days late.1 Therefore, because the record firmly establishes that

Sheldon's petition was untimely filed, Sheldon's second assignment of error is also without

merit and overruled.




1. Former R.C. 2953.21(A)(2) provided that petitions for postconviction relief were to be filed within 180 days
after the date on which the trial transcript was filed in the court of appeals in the direct appeal of the judgment of
conviction. Effective March 23, 2015, this deadline was extended to 365 days.
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       {¶ 16} Assignment of Error No. 3:

       {¶ 17} IF THE PETITION WAS NOT TIMELY FILED, THE TRIAL COURT ERRED IN

NOT EXCUSING ITS UNTIMELINESS.

       {¶ 18} In his third assignment of error, Sheldon argues the trial court erred by not

entertaining his untimely petition for postconviction relief. We disagree.

       {¶ 19} If a petitioner fails to file his petition for postconviction relief within the

prescribed time period, R.C. 2953.23(A)(1)(a) permits the trial court to entertain such a

petition so long as the petitioner demonstrates either (1) he was unavoidably prevented from

discovering the facts necessary to assert his claim for relief, or (2) he is invoking a new

federal or state right recognized by the United States Supreme Court that is retroactively

applicable to persons similarly situated. State v. Kent, 12th Dist. Preble No. CA2013-05-003,

2013-Ohio-5090, ¶ 12. If the petitioner satisfies one of these threshold requirements, R.C.

2953.23(A)(1)(b) then requires the petitioner to offer clear and convincing evidence

demonstrating that, but for the constitutional error at trial, no reasonable factfinder would

have found him guilty of the offenses of which he was convicted. State v. McKelton, 12th

Dist. Butler No. CA2015-10-183, 2016-Ohio-3216, ¶ 8. "A defendant's failure to either timely

file a petition for post-conviction relief or meet his burden under R.C. 2953.23(A)(1) deprives

a trial court of jurisdiction to entertain the petition." State v. Taylor, 9th Dist. Lorain No.

14CA010549, 2014-Ohio-5738, ¶ 9.

       {¶ 20} In this case, Sheldon claims the trial court should have excused the untimely

filing of his petition because he was unavoidably prevented from discovering the facts

necessary to assert his claims for relief due to his "mental injuries," his inability to obtain his

father's supporting affidavit, incompetence of his "jailhouse lawyer," and his own limited

understanding of the postconviction relief procedure. However, we fail to see how any of

these issues unavoidably prevented Sheldon from discovering the facts necessary to assert
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his claims for relief, i.e., that he received ineffective assistance of counsel and that the state

failed to provide him with certain Brady material prior to trial. Nothing about these claims

required the discovery of any additional facts that were not otherwise readily available to him.

       {¶ 21} Moreover, even if we were to find some evidence to support Sheldon's claim

that he was unavoidably prevented from discovering the facts necessary to assert his claims

for relief, Sheldon offered no evidence that, but for some constitutional error at trial, no

reasonable factfinder would have found him guilty of the offenses of which he was convicted.

As noted above, a jury convicted Sheldon on five counts of rape after it was alleged he had

raped his minor daughter, M.S., on five separate occasions between October 2008 and June

2012 when she was between the ages of seven and twelve years old. We affirmed

Sheldon's conviction on direct appeal finding his conviction was supported by sufficient

evidence and otherwise not against the manifest weight of the evidence. Therefore, because

Sheldon failed to meet his burden under R.C. 2953.23(A)(1), Sheldon's third assignment of

error is without merit and overruled.

       {¶ 22} Assignment of Error No. 4:

       {¶ 23} THE TRIAL COURT ERRED IN MAKING BLANKET FINDINGS AS TO ALL

SUPPORTING AFFIDAVITED (sic) STATEMENTS.

       {¶ 24} In his fourth assignment of error, Sheldon argues the trial court erred by finding

the affidavits from him and his father attached to his petition lacked credibility. We disagree.

       {¶ 25} Although a trial court should generally give deference to an affidavit filed in

support of a petition for postconviction relief, "the trial court is entrusted, based on the sound

exercise of discretion, to judge an affiant's credibility in determining whether to accept an

affidavit submitted in support of a [petition for postconviction relief] as true." State v.

Blankenburg, 12th Dist. Butler No. CA2013-11-197, 2014-Ohio-4621, ¶ 31. In turn, "[t]he trial

court may, under appropriate circumstances in postconviction relief proceedings, deem
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affidavit testimony to lack credibility without first observing or examining the affiant."

Calhoun, 86 Ohio St.3d at 284. "That conclusion is supported by common sense, the

interests of eliminating delay and unnecessary expense, and furthering the expeditious

administration of justice." Id.

       {¶ 26} As noted above, in ruling on Sheldon's petition, the trial court determined that

the affidavits from Sheldon and his father "border on absurdity" and "have little or no

credibility." After a thorough review of the record, we find no error in the trial court's decision.

In so holding, we note that "'Ohio courts have consistently held that affidavits from interested

parties such as defendants, co-defendants, and family members are self-serving and may be

discounted.'" State v. Robinson, 12th Dist. Butler No. CA2013-05-085, 2013-Ohio-5672, ¶

17, quoting State v. Nicholson, 8th Dist. Cuyahoga No. 97873, 2012-Ohio-4591, ¶ 19.

Therefore, because we find no error in the trial court's decision, Sheldon's fourth assignment

of error is likewise without merit and overruled.

       {¶ 27} Assignment of Error No. 5:

       {¶ 28} THE TRIAL COURT ERRED IN FINDING/HOLDING RES JUDICATA ISSUE

PRECLUSION APPLIED TO ALL OF PETITIONER'S PCRP CLAIMS.

       {¶ 29} In his fifth assignment of error, Sheldon argues the trial court erred by finding

his claims alleging he received ineffective assistance of counsel and that the state failed to

provide him with certain Brady material prior to trial were barred by the doctrine of res

judicata. We disagree.

       {¶ 30} A trial court may dismiss a postconviction relief petition on the basis of res

judicata. State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 30.

"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
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or could have been raised by the defendant at the trial, which resulted in that judgment of

conviction, or on an appeal from that judgment." State v. Franklin, 12th Dist. Butler No.

CA2002-07-183, 2003-Ohio-1770, ¶ 11. However, "there is an exception to the res judicata

bar when the petitioner presents competent, relevant, and material evidence outside the

record that was not in existence and available to the petitioner in time to support the direct

appeal." State v. Piesciuk, 12th Dist. Butler No. CA2013-01-011, 2013-Ohio-3879, ¶ 18.

       {¶ 31} Initially, as it relates to his ineffective assistance of counsel claim, Sheldon

argues he received ineffective assistance when his trial counsel advised both him and his

father that he should reject the state's plea offer because he had a "sure win" at trial.

Sheldon also argues he received ineffective assistance of counsel since his trial counsel

misinformed both him and his father that his "maximum exposure" if he was convicted at trial

would be "15 to life, with parole likely after serving 15 years." However, just as the trial court

found, all information concerning this issue was clearly in existence and readily available to

Sheldon prior to trial and prior to him filing his direct appeal. Therefore, any claim alleging

that he received ineffective assistance due to these alleged statements should have been

raised as part of that appeal.

       {¶ 32} Next, as it relates to his claim that the state failed to provide him with certain

Brady material from the state's expert witnesses, Dr. Shapiro. Specifically, Sheldon claims

the state had an "obligation to summarize an outcome-determinative opinion of Dr. Shapiro

given at trial that a young virgin's hymen and/or vagina could be ruptured and/or penetrated

by a rape and still produce a "normal" examination." However, as the trial court properly

found, these records were provided to Sheldon approximately seven months before trial. In

turn, just as the trial court stated, Sheldon had "ample access to the evidence presented by

Dr. Shapiro both favorable and unfavorable to [him.]" Again, any claim as to this alleged

Brady violation could also have been raised as part of Sheldon's direct appeal. The trial
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court did not err by finding these issues were barred by the doctrine of res judicata.

Accordingly, Sheldon's fifth assignment of error lacks merit and is overruled.

       {¶ 33} Assignment of Error No. 6:

       {¶ 34} THE TRIAL COURT ERRED IN DENYING APPELLANT'S PCRP MOTION

FOR APPOINTMENT OF COUNSEL.

       {¶ 35} In his sixth assignment of error, Sheldon argues the trial court erred by denying

his motion for appointment of counsel.        However, "[i]t is well-settled that an indigent

defendant has neither a state nor federal constitutional right to be represented by an attorney

in a postconviction proceeding." State v. Carballo, 12th Dist. Madison No. CA97-05-018,

1998 WL 40665, *3 (Feb. 2, 1998), citing State v. Crowder, 60 Ohio St.3d 151 (1991),

paragraph one of the syllabus. In turn, "[t]he appointment of counsel is not required for the

initial burden of preparing and presenting an indigent's petition for postconviction relief."

State v. Slusher, 12th Dist. Clermont No. CA97-12-110, 1998 WL 130199, *1 (Mar. 23,

1998). Therefore, finding no error in the trial court's decision denying Sheldon's motion for

the appointment of counsel, Sheldon's sixth assignment of error is without merit and

overruled.

       {¶ 36} Assignment of Error No. 7:

       {¶ 37} THE TRIAL COURT ERRED IN REFUSING TO SUBSTANTIVELY RULE ON

APPELLANT'S KEY PCRP POINTS MADE ON THE M.S. MEDICAL FILE ISSUES, AND IN

REFUSING TO SUBSTANTIVELY RULE ON WHETHER TRIAL DEFENSE COUNSEL WAS

INEFFECTIVE.

       {¶ 38} In his seventh assignment of error, Sheldon argues the trial court erred by

summarily dismissing his petition by finding it was untimely filed and barred by the doctrine of

res judicata rather than issuing a decision on the merits. However, as noted above, we can

find no error in the trial court's decision to summarily dismiss Sheldon's petition as it was
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untimely and barred by the doctrine of res judicata.       Therefore, Sheldon's seventh

assignment of error lacks merit and is overruled.

                                       Conclusion

      {¶ 39} Having found no merit to any of Sheldon's seven assignments of error raised

herein, the trial court's decision denying Sheldon's petition for postconviction relief is

affirmed.

      {¶ 40} Judgment affirmed.


      M. POWELL, P.J., and HENDRICKSON, J., concur.




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