[Cite as State v. Moore, 2018-Ohio-2800.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.       17CA011237

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ROBERT F. MOORE, JR.                                  COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   98CR052062

                                 DECISION AND JOURNAL ENTRY

Dated: July 16, 2018



        SCHAFER, Presiding Judge.

        {¶1}     Defendant-Appellant, Robert Moore, appeals the denial of his motion for

postconviction relief in the Lorain County Court of Common Pleas. We affirm.

                                                 I.

        {¶2}     In March of 2000, Moore was convicted of two counts of rape and two counts of

sexual battery. Moore filed a timely appeal of his convictions and sentencing and this Court

affirmed. See State v. Moore, 9th Dist. Lorain No. 00CA007587, 2001 Ohio App. LEXIS 653

(Feb. 7, 2001). In October 2016, Moore filed a petition to vacate or set aside judgment of

conviction. The State responded in opposition, arguing, in part, that Moore’s petition was

untimely. The trial court denied the petition.

        {¶3}     Moore filed this timely appeal, raising three assignments of error for our review.

For ease of analysis, we elect to consider them together.
                                                 2


                                                II.

                                     Assignment of Error I

       The trial court abuse[d its] discretion taking over four hundred and six (406)
       days to render an appealable order in violation of Art. I, § 16 and Art. I, § 2
       of the Ohio Constitution and the Constitution of the United States Fifth and
       Fourteenth Amendments.
                                   Assignment of Error II

       The trial court abused its discretion denying [Moore]’s motion for
       [postconviction] relief pursuant to [R.C. 2953.23(a)] by allowing the State’s
       untimely motion for leave to file response instanter to [Moore]’s motion for
       post-conviction relief.

                                    Assignment of Error III

       The trial court erred to the prejudice of [Moore] with subtle erroneous
       conjecture and misinterpretation of fact and case law resulting in an abuse of
       discretion in denying [Moore]’s motion for post-conviction relief.

       {¶4}    In his assignments of error, Moore contends that the trial court abused its

discretion by: (1) taking more than 406 days to render a judgment on his motion for

postconviction relief in violation of the Ohio Constitution, the United States Constitution, and

“R.C. 2953;” (2) granting the State’s motion for leave to file a response to his motion for

postconviction relief; and (3) denying his motion for post-conviction relief based on court’s

misinterpretation of the facts and case law.

       {¶5}    In Ohio, postconviction relief is governed by statute and the right to file a petition

for postconviction relief is a statutory right, not a constitutional one. R.C. 2953.21; State v.

Calhoun, 86 Ohio St.3d 279, 281 (1999). “R.C. 2953.21 grants a petitioner only those rights

specifically enumerated in its provisions and no more.” State v. Broom, 146 Ohio St.3d 60,

2016-Ohio-1028, ¶ 28, citing Calhoun at 281. Additionally, “[a] postconviction proceeding is

not an appeal of a criminal conviction but, rather, is a collateral civil attack on a criminal

judgment.” Id.
                                                 3


        {¶6}     R.C. 2953.21(A)(1)(a) provides that any person who has been convicted of a

criminal offense may petition the court for postconviction relief pursuant to a claim “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.” The trial court

serves a gatekeeping function in postconviction relief cases; “it determines whether the petitioner

will even receive a hearing.” State v. Wesson, 9th Dist. Summit No. 25874, 2012-Ohio-4495, ¶

9, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 51.

        {¶7}     In this case, the trial court denied Moore’s petition, in part, on the basis that

Moore’s petition was untimely and that Moore had failed to establish that the United States

Supreme Court had established a new right to be applied retroactively to defendants in Moore’s

situation.     See R.C. 2953.23.    Generally, this Court reviews a trial court’s denial of a

postconviction relief petition for an abuse of discretion. State v. Samuels, 9th Dist. Summit No.

24370, 2009-Ohio-1217, ¶ 3. However, when a trial court denies a petition on the basis of an

issue of law, this Court’s review is de novo.         Id.   “Whether a defendant’s [petition for

postconviction relief] satisfied the procedural requirements set forth in R.C. 2953.21 and R.C.

2953.23 is an issue of law.” State v. Nichols, 9th Dist. Summit No. 26923, 2014-Ohio-102, ¶ 7,

citing Samuels at ¶ 3-7.

        {¶8}     When Moore was convicted in this case in March 2000, R.C. 2953.21(A)(2)

provided, in part, that a petition for post-conviction relief “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 * * * .” In this case, the trial transcript was filed

in in Moore’s direct appeal of the judgment of conviction on June 8, 2000. Moore did not file
                                                  4


his petition for post-conviction relief until over sixteen years later on October 4, 2016.

Therefore, Moore’s petition for post-conviction relief was untimely.

       {¶9}    However, a trial court may entertain an untimely petition for post-conviction

relief where the petitioner satisfies the factors contained in R.C. 2953.23(A)(1). See State v.

Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9, citing State v. Kolvek, 9th Dist.

Summit Nos. 22966, 22967, 2006-Ohio-3113, ¶ 7. The exception exists where a petition can

show that (1) “the petitioner was unavoidably prevented from discovery of the facts upon which

the petitioner must rely to present the claim for relief, or * * * 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[;]” and (2) there is clear and

convincing evidence that, but for the constitutional error at trial, no reasonable trier of fact would

have found the petitioner guilty of the offense. R.C. 2953.23(A)(1)(a) and (b).

       {¶10} In his petition and on appeal, Moore contends that the United States Supreme

Court expanded the constitutional right to counsel to the negotiation and consideration of plea

offers that lapse or are rejected in Missouri v. Frye, 566 U.S. 134 (2012) and Lafler v. Cooper,

566 U.S. 156 (2012). However, several of our sister districts have already rejected the argument

that Frye or Lafler created a new retroactive right. See State v. Hicks, 8th Dist. Cuyahoga No.

99119, 2013-Ohio-1904, ¶ 13-14 (finding federal court decisions persuasive and agreeing that

Frye and Lafler did not create a new retroactive right); State v. Isa, 2d Dist. Champaign No.

2012-CA-44, 2013-Ohio-3382, ¶ 9 (holding that both cases “simply examined a defendant’s

existing right to the effective assistance of counsel in the context of plea bargaining” and did not

establish a new right or announce a new rule of constitutional law); State v. Anderson, 11th Dist.

Trumbull No. 2013-T-0041, 2013-Ohio-4426, ¶ 19-20; State v. Burton, 4th Dist. Gallia No.
                                                 5


13CA12, 2014-Ohio-2549, ¶ 15; State v. Tanksley, 10th Dist. Franklin No. 13AP-769, 2014-

Ohio-1194, ¶ 7; State v. Hibbard, 12th Dist. No. CA2013-03-051, 2014-Ohio-442, ¶ 26.

Moreover, “[i]t has also been noted that ‘the majority of the [federal circuit courts] are in accord

that Lafler and Frye do not establish a new right.’” Anderson at ¶ 20, quoting Hestle v. United

States, E.D. Mich. No. 05-40245, 2013 U.S. Dist. LEXIS 37886, 29 (March 19, 2013); United

States v. Garcia-Rodriguez, 10th Cir. No. 13-8031, 2013 U.S. App. LEXIS 12450, 5 (June 19,

2013).

         {¶11} Upon review, we agree that Frye and Lafler did not create a new retroactive right

as Moore contends. “Because [Moore] failed to establish the applicability of an exception that

would allow the trial court to consider his untimely petition, the trial court lacked jurisdiction to

entertain his petition for postconviction relief.” Tanksley at ¶ 8. Therefore, although trial court

should have dismissed Moore’s petition for lack of jurisdiction, the trial court did not err in

denying the petition. See id.

         {¶12} Moore’s assignments of error are overruled.

                                                III.

         {¶13} Moore’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.




         There were reasonable grounds for this appeal.
                                                 6


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CARR, J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

ROBERT F. MOORE, JR., pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Proescuting Attorney, for Appellee.
