[Cite as State v. Johnson, 2012-Ohio-2542.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :        C.A. CASE NO.        24775

v.                                                   :        T.C. NO.   10CR1201/2

WILLIAM A. JOHNSON                                   :        (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                              ..........

                                              OPINION

                         Rendered on the       8th   day of    June      , 2012.

                                              ..........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Rd., Dayton, Ohio 45419
      Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

                 {¶ 1} William Johnson appeals from the denial of his petition for

post-conviction relief. Because the trial court properly denied the petition, the judgment of
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the trial court will be affirmed.

                                              I.

          {¶ 2}    In May 2010, Johnson was indicted on two counts of aggravated robbery

with firearm specifications, four counts of kidnapping with firearm specifications, and one

count of tampering with evidence. Two months later, Johnson pled guilty to all counts and

specifications. On August 18, 2010, the trial court sentenced him to fourteen years in

prison.

          {¶ 3}    Johnson timely appealed from his conviction. State v. Johnson, 2d Dist.

Montgomery No. 24260. On October 27, 2010, a CD with a video recording of the hearing

on his “motion for costs of expert” and his sentencing was filed with this Court. The

following day, the clerk of court issued its App.R. 11(B) notification, which informed the

parties that the record on appeal was complete. No written transcript was filed, and there is

nothing in the record to suggest that Johnson made any effort to have a written transcript

prepared. In March 2011, after notice to Johnson, we dismissed his appeal because he had

failed to file a brief.

          {¶ 4}    On April 26, 2011, Johnson filed a petition for post-conviction relief,

claiming that his trial counsel rendered ineffective assistance and that counsel’s deficiencies

could not have been raised on direct appeal. Johnson supported his petition with his own

affidavit and an affidavit from his grandfather. The State moved for summary judgment on

the grounds that Johnson’s petition failed to state substantive grounds for relief and his

claims were barred by res judicata.

          {¶ 5}    The trial court granted the State’s motion for summary judgment and
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overruled Johnson’s petition without a hearing. It found that Johnson had “failed to submit

evidentiary documents containing sufficient operative facts to demonstrate the lack of

competent counsel and that his defense was prejudiced by counsel’s ineffectiveness.” The

court noted that Johnson’s “broad, conclusory statements” did not warrant an evidentiary

hearing.

       {¶ 6}     Johnson appeals from the trial court’s judgment.

                                               II.

       {¶ 7}     In his sole assignment of error, Johnson claims that “[t]he trial court

committed error by granting the State’s motion for summary judgment and overruling

Appellant’s petition for post-conviction relief without granting a hearing.”

       {¶ 8}     An appellate court reviews a trial court’s denial of a petition for

post-conviction relief under an abuse-of-discretion standard. State v. Gondor, 112 Ohio

St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion implies an

arbitrary, unreasonable, unconscionable attitude on the part of the trial court. Blakemore v.

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

       {¶ 9}     A post-conviction proceeding is not an appeal of a criminal conviction; it is

a collateral civil attack on the judgment. Gondor at ¶ 48; State v. Steffan, 70 Ohio St.3d

399, 410, 639 N.E.2d 67 (1994); R.C. 2953.21(J). For this reason, a defendant’s petition

for post-conviction relief is not a constitutional right; the only rights afforded to a defendant

in post-conviction proceedings are those specifically granted by the legislature. Steffan, 70

Ohio St.3d at 410; State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).

       {¶ 10}    Petitions for post-conviction relief are governed by R.C. 2953.21 through
                                                                                               4

R.C. 2953.23. Under these statutes, any defendant who has been convicted of a criminal

offense and who claims to have experienced a denial or infringement of his or her

constitutional rights may petition the trial court to vacate or set aside the judgment and

sentence. R.C. 2953.21(A).

       {¶ 11}    The State asserts, as a preliminary matter, that no hearing was necessary

because Johnson’s petition was not timely filed. Although the State did not raise this

argument in the trial court, the issue was not waived, as the trial court lacks jurisdiction to

consider an untimely petition for post-conviction relief, unless the untimeliness is excused

under R.C. §2953.23(A).        See State v. James, 10th Dist. Franklin No. 11AP-246,

2011-Ohio-6457, ¶ 14 (the State “neither may waive nor forfeit” the jurisdictional limitation

in R.C. 2953.21); State v. West, 2d Dist. Clark No. 08 CA 102, 2009-Ohio-7057, ¶ 7 (“The

time bar imposed by R.C. 2953.21(A) is jurisdictional.”).

       {¶ 12}    When a direct appeal has been taken, a petition for post-conviction relief

must be filed “no later than one hundred and eighty days after the date on which the trial

transcript is filed in the court of appeals * * *.” R.C. 2953.21(A)(2). If no direct appeal is

filed, “the petition shall be filed no later than one hundred eighty days after the expiration of

the time for filing the appeal.” Id.

       {¶ 13}    The State argues that, because no written transcript was filed in his direct

appeal, Johnson was required to file his petition for post-conviction relief within 180 days of

the expiration of the time for filing the direct appeal. The State thus contends that any

petition for post-conviction relief needed to have been filed by March 16, 2011; Johnson did

not file his petition until April 26, 2011, six weeks after that date. We disagree with the
                                                                                               5

State’s contention that we should treat Johnson’s petition as if no appeal had been filed.

       {¶ 14}    The Ohio Supreme Court recently addressed when the “trial transcript” is

filed for purposes of calculating the time by which to file a petition for post-conviction

relief. State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, 951 N.E.2d 1018. In that

case, Everette’s petition was filed within 180 days of the filing of the written transcript, but

more than 180 days after the filing of the videotapes of the proceedings. The supreme court

noted that the post-conviction relief statute did not define “trial transcript,” and it concluded

that the common usage of the terms “transcript” or “transcript of proceedings” required that

a transcript be in written, typed, or printed form.       Id. at ¶ 16-20.    (The court further

commented that its holding was consistent with the soon-to-be effective July 1, 2011

amendments to App.R. 9, which now requires a written transcript for the record on appeal,

regardless of the method of recording the proceedings.)

       {¶ 15}    The Ohio Supreme Court expressly rejected the State’s assertion that the

issue was governed by the portion of then-App.R. 9(A), which provided, “A videotape

recording of the proceedings constitutes the transcript of proceedings other than hereinafter

provided, and, for purposes of filing, need not be transcribed into written form.” The court

explained,

       Significantly, the rule later states: “When the written form is certified by the

       reporter in accordance with App.R. 9(B), such written form shall then

       constitute the transcript of proceedings.”         (Emphasis added.)        Thus,

       although it is true that a videotape recording of the proceedings constitutes

       the transcript of the proceedings when a written transcript is not provided,
                                                                                              6

       pursuant to this exception, when a written transcript is certified by the

       reporter, it constitutes the “transcript of proceedings” under App.R. 9(A).

       We thus hold that whenever a written transcript is certified by the reporter in

       accordance with App.R. 9(A), the written transcript shall constitute the trial

       “transcript” or “transcript of proceedings” for purposes of calculating the time

       by which to file a petition for postconviction relief. A videotape recording

       constitutes the trial transcript or transcript of proceedings only when there is

       no written transcript certified by the reporter.

(Emphasis added.) Everette at ¶ 27. The supreme court concluded in Everette’s case that

the time for filing his petition began to run when the written transcript was filed.

       {¶ 16}    In this case, Johnson was sentenced on August 18, 2010, and he timely filed

a notice of appeal.     Consequently, Johnson had 180 days from the filing of the trial

transcript in his appeal to file his petition for post-conviction relief. A CD containing a

video recording of the hearing was filed on October 27, 2010. Because no written transcript

was filed, the filing of the CD constituted the trial transcript for purposes of calculating the

date by which Johnson was required to file his petition for post-conviction relief. Johnson’s

petition was filed on April 26, 2011, which was 181 days after the filing of the CD.

       {¶ 17}    Pursuant to R.C. 2953.23(A), a defendant may file an untimely petition for

post-conviction relief if he was unavoidably prevented from discovering the facts upon

which he relies to present his claim, or if the United States Supreme Court recognizes a new

federal or state right that the petitioner alleges applies retroactively to his situation. The

petitioner must also show by clear and convincing evidence that, if not for the constitutional
                                                                                              7

error from which he suffered, no reasonable factfinder could have found him guilty. Id.

       {¶ 18}    Johnson offers no explanation for the late filing of his petition.         He

proffers no evidence that he was unavoidably prevented from discovering, and he makes no

claim that the Supreme Court has recognized a new right that applies to him. Thus, he does

not meet the first requirement set forth in R.C. 2953.23(A). Having failed to demonstrate

the first statutory requirement, it is impossible for him to meet the second.          Because

Johnson fails to establish either of the conditions that could excuse an untimely filing, the

trial court was without jurisdiction to entertain the petition.     When a trial court lacks

jurisdiction to consider an untimely petition, it is not necessary for the court to hold an

evidentiary hearing on that petition. State v. Foster, 10th Dist. Franklin No. 09AP-227,

2009-Ohio-5202, ¶ 8.

       {¶ 19}    Even if Johnson’s petition were timely filed, an evidentiary hearing is not

required for every petition seeking post-conviction relief. Gondor at ¶ 51. A petition may

be dismissed without a hearing when the petitioner fails to set forth sufficient operative facts

to establish substantive grounds for relief in his petition, the supporting affidavits or

documentary evidence, or in the trial court record. Id.; R.C. 2953.21(C).

       {¶ 20}    In both his petition and in his appellate brief, Johnson offers five cursory

arguments that his trial counsel was ineffective. He insists that (1) counsel failed to file a

motion to suppress, (2) counsel failed to request severance of the various counts of the

indictment, (3) counsel did not interview potential alibi witnesses, (4) counsel did not

sufficiently explain the discovery to Johnson, and (5) counsel led Johnson to believe that he

would receive no more than a ten-year sentence if he pled guilty to the offenses. In support
                                                                                             8

of these claims, Johnson provided the trial court only with his self-serving affidavit and with

an affidavit from his grandfather, which purports to provide some evidence of alibi.

       {¶ 21}    Johnson provides no explanations of what evidence counsel should have

sought to have suppressed or why, and he offers no argument in support of which counts

should have been severed, or on what bases. Johnson fails to explain how his grandfather’s

affidavit would support an alibi defense.      Similarly, he offers no explanation of what

discovery he failed to understand, or why he believed that there was an agreement to a

ten-year sentence, when the record rebuts both claims. Therefore, we would agree with the

trial court’s conclusion that he “failed to submit evidentiary documents containing sufficient

operative facts to demonstrate the lack of competent counsel and that his defense was

prejudiced by counsel’s ineffectiveness.”

       {¶ 22}    Accordingly, the trial court did not abuse its discretion in denying

Johnson’s untimely petition for post-conviction relief without a hearing.           Johnson’s

assignment of error is overruled.

                                             III.

       {¶ 23}    The trial court’s judgment will be affirmed.

                                         ..........

FAIN, J. and HALL, J., concur.

Copies mailed to:

Michele D. Phipps
Jay A. Adams
Hon. Mary Katherine Huffman
