[Cite as State v. Brown, 2012-Ohio-2126.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 1-11-68

        v.

ANTWAYNE D. BROWN,                                       OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2004 0459

                                     Judgment Affirmed

                             Date of Decision: May 14, 2012




APPEARANCES:

        Antwayne D. Brown, Appellant

        Jana E. Emerick for Appellee
Case No. 1-11-68


WILLAMOWSKI, J.

      {¶1} Defendant-appellant Antwayne D. Brown (“Brown”) brings this

appeal from the judgment of the Court of Common Pleas of Allen County denying

his motion for post-conviction relief.       For the reasons set forth below, the

judgment is affirmed.

      {¶2} On January 11, 2005, a jury convicted Brown of one count of

aggravated burglary with a firearm specification, one count of aggravated robbery

with a firearm specification, and felonious assault with a firearm specification.

The trial court then proceeded to immediately sentence Brown to an aggregate

prison term of twenty-nine years. The verdicts and sentence were journalized on

January 14, 2005. A direct appeal was taken and on November 21, 2005, this

court affirmed Brown’s convictions and sentences. State v. Brown, 3d Dist. No. 1-

05-11, 2005-Ohio-6177.

      {¶3} On October 14, 2011, Brown filed a petition for post-conviction relief.

The State filed its response on October 17, 2011. On October 26, 2011, the trial

court dismissed Brown’s petition. Brown appeals from this judgment and raises

the following assignments of error.

                           First Assignment of Error

      The trial court erred when [it] denied [Brown’s] petition for
      post-conviction relief based on being untimely.



                                       -2-
Case No. 1-11-68


                          Second Assignment of Error

       The trial court erred when [it] denied [Brown’s] petition for
       post-conviction relief and abused [its] discretion when doing so
       without a hearing.

       {¶4} The first assignment of error alleges that the trial court erred in

denying Brown’s petition for post-conviction relief. Petitions for post-conviction

relief are governed by R.C. 2953.21, which states in pertinent part as follows.

       Any person who has been convicted of a criminal offense * * *
       and who claims that there was such a denial or infringement of
       the person's rights as to render the judgment void or voidable
       under the Ohio Constitution or the Constitution of the United
       States, * * * may file a petition in the court that imposed
       sentence, stating the grounds for relief relied upon, and asking
       the court to vacate or set aside the judgment or sentence or to
       grant other appropriate relief. The petitioner may file a
       supporting affidavit and other documentary evidence in support
       of the claim for relief.

       ***

       [A] petition under division (A)(1) of this section shall be filed no
       later than one hundred eighty days after the date on which the
       trial transcript is filed in the court of appeals in the direct appeal
       of the judgment of conviction * * *.

R.C. 2953.21(A)(1-2). A court generally is prohibited from considering a petition

filed past the statutory deadline. R.C. 2953.23(A). However, an untimely motion

may be considered if both of the following requirements are met. R.C. 2953.23.

       (a) Either the petitioner shows that the petitioner was
       unavoidably prevented from discovery of the facts upon which
       the petitioner must rely to present the claim for relief, or
       subsequent to the period prescribed in [R.C. 2953.21(A)(2)] or to

                                        -3-
Case No. 1-11-68


          the filing of an earlier petition, the United States Supreme Court
          recognized a new federal or state right that applies retroactively
          to persons in the petitioner’s situation and the petition asserts a
          claim based on that right.

          (b) The petitioner shows by clear and convincing evidence that,
          but for constitutional error at trial, no reasonable factfinder
          would have found the petitioner guilty of the offense of which
          the petitioner was convicted * * *.

R.C. 2953.23(A)(1).

          {¶5} In this case, Brown claims that he was prevented from filing a timely

petition. He alleges that he did not commit the offenses and that he recently came

into possession of an affidavit from the real offender, one Antwon Dotson

(“Dotson”). Brown also alleges that the State was aware of Dotson’s confessions

prior to his trial and did not disclose the existence of Dotson’s statements to

Brown. However, a review of the record indicates that Brown was aware of

Dotson at the time of the trial and did not call him to testify at trial. Tr. 352. In

addition, the attached affidavit from Dotson was dated November 10, 2009.1 The

petition was not filed until 2011. Since the record indicates that Brown was aware

of Dotson’s connection to this case at the time of trial, it is not newly discovered

evidence. The petition was not filed within the statutory deadline. Thus the trial

court did not err in dismissing the petition. The first assignment of error is

overruled.



1
    This court notes that the notary signed the affidavit on November 4, 2009.

                                                     -4-
Case No. 1-11-68


       {¶6} Brown also alleges that the trial court erred by not holding a hearing

before dismissing the petition. A hearing on a petition for post-conviction relief is

not necessary unless the trial court finds that the petition sets forth substantive

grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83 (1999) and R.C.

2953.21(C).

       {¶7} Here, there is no question that the petition was not timely filed. The

trial court reviewed the attached affidavits and the records. The trial court then

determined that the timeliness exceptions set forth in R.C. 2953.23(A) did not

apply in this case. This court has affirmed this finding above. Thus, since the

petition was not timely filed and the exceptions did not apply, the trial court had

no authority to consider the petition, let alone hold a hearing. The trial court did

not err in dismissing the appeal without a hearing. The second assignment of error

is overruled.

       {¶8} Having found no error prejudicial to Brown, the judgment of the Court

of Common Pleas of Allen County is affirmed.

                                                                Judgment Affirmed

PRESTON and ROGERS, J.J., concur.

/jlr




                                         -5-
