[Cite as State v. Parker, 2013-Ohio-3177.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :        C.A. CASE NO.        25518

v.                                                     :        T.C. NO.       05CR5301

RONALD L. PARKER III                                   :            (Criminal appeal from
                                                                     Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                             ..........

                                             OPINION

                         Rendered on the        19th       day of       July     , 2013.

                                             ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

RONALD PARKER III, #518-328, Madison Correctional Institute, P. O. Box 740, London,
Ohio 43140
      Defendant-Appellant

                                             ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Ronald L. Parker III, acting pro se, appeals a decision of

the Montgomery County Court of Common Pleas dismissing his motion for leave to file a
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delayed petition for post-conviction relief without an evidentiary hearing. The trial court

issued its decision dismissing Parker’s motion on October 24, 2012. Parker filed a notice of

appeal with this Court on December 6, 2012, which we allowed in light of the trial court’s

failure to comply with Civil Rule 58(B).

       {¶ 2}    On December 30, 2005, Parker was indicted by a Montgomery County grand

jury for one count of felonious assault and one count of kidnaping. After a bench trial,

Parker was convicted on both counts. The trial court sentenced him to seven years on each

count and ordered that the sentences be served consecutively for an aggregate total of 14

years imprisonment.     Parker appealed his conviction and sentence to this Court.           We

affirmed his conviction and sentence in State v. Parker, 2d Dist. Montgomery No. 21599,

2007-Ohio-1512 (hereinafter “Parker I”).

       {¶ 3}    On July 31, 2007, Parker filed a motion for leave to file a delayed motion for

new trial with the trial court. In the motion, Parker claimed that the State’s key witness,

Amber Wilt, recanted her trial testimony. In an affidavit attached to Parker’s motion for

leave to file a delayed motion for new trial, Wilt partially recanted her trial testimony against

Parker. Specifically, Wilt claimed that she did not know who struck her, and that the State

essentially coerced her into testifying against Parker. The trial court overruled Parker’s

motion in a judgment entry filed on August 20, 2007. Parker appealed the trial court’s

decision.   We affirmed the decision of the trial court, finding that Parker was not

unavoidably delayed from discovering the partial recantation by Wilt. State v. Parker, 178

Ohio App.3d 574, 2008-Ohio-5178, 899 N.E.2d (2d Dist.) (hereinafter “Parker II”).

       {¶ 4}    Thereafter, Parker filed a petition for post-conviction relief on June 18,
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2010, arguing that all of Wilt’s original trial testimony was false, thereby causing him to be

“falsely imprisoned” based on the averments in Wilt’s affidavit that she was not “entirely

truthful” when she testified. Parker also argued that the three witnesses who testified

against him, Wilt, Brandy Matheny, and Molly Cruz, were motivated to commit perjury in

order to eliminate drug debts owed Parker. On July 28, 2010, the trial court dismissed

Parker’s petition. Parker did not file an appeal from the trial court’s decision.

       {¶ 5}     On August 8, 2012, Parker filed a motion for leave to file a delayed petition

for post-conviction relief. Attached to Parker’s motion were the affidavits of Amber Wilt

and Brandy Matheny, in which both women recant their testimony against Parker and claim

that they only testified against him in order to eliminate drug debts they owed to him. The

State filed a motion to dismiss Parker’s motion on September 6, 2012. On October 24,

2012, the trial court dismissed Parker’s motion as untimely and successive pursuant to

2953.23(A)(1).

       {¶ 6}     It is from this judgment that Parker now appeals.

       {¶ 7}     Both of Parker’s assignments of error being interrelated, they will be

discussed together as follows:

       {¶ 8}     “THE      TRIAL       COURT         ERRED        WHEN         IT     DENIED

APPELLANT-DEFENDANT POST-CONVICTION RELIEF STATING HE DID NOT

FULFILL THE OBLIGATIONS OF R.C. § 2953.23.”

       {¶ 9}     “THE    TRIAL     COURT       ERRED      IN   FAILING      TO      HOLD   AN

EVIDENTIARY HEARING.”

       {¶ 10} In his first assignment, Parker contends that the trial court erred when it
                                                                                            4

overruled his motion for leave to file a delayed motion for post-conviction relief pursuant to

R.C. 2953.23(A). In support of his motion for leave, Parker offered the affidavits of Brandy

Matheny and Amber Wilt, which he argues directly contradict the testimony they offered

during trial.   Parker asserts that the affidavits constituted new evidence that he was

unavoidably prevented from discovering prior to trial. Parker claims that had the trial court

properly considered the exculpatory nature of the affidavits, the court would have sustained

his motion for leave to file a motion for delayed post-conviction relief. Parker concedes

that his motion is both untimely and successive. Nonetheless, Parker argues that the all of

the requirements outlined in R.C. 2953.23 were met

       {¶ 11} Initially, we note that we have already considered Wilt’s affidavit submitted

by Parker in Parker II. Specifically, we found that Parker was not unavoidably delayed

from discovering the partial recantation by Wilt and affirmed the decision of the trial court

overruling his motion for leave to file a delayed motion for new trial. In Parker II, we

stated as follows:

       After a thorough review of the record, we hold that Parker’s conclusory

       statement that he was unavoidably delayed to be insufficient to demonstrate

       clearly and convincingly that he could not have discovered this “new”

       evidence with due diligence. In particular, the affidavit submitted by Parker

       fails to explain how Wilt’s partial recantation came to light or why there was

       such a long delay in obtaining it. Parker argues that the delay was caused by

       the fact that both he and Wilt are currently serving terms of imprisonment in

       Ohio. The mere fact of Parker’s and/or Wilt’s incarceration does not amount
                                                                                          5

       to clear and convincing evidence that he was unavoidably prevented from

       discovering the evidence within the time limit. State v. Smith (March 27,

       1998), Miami App. No. 97-CA-46, 1998 WL 404458. Without more, the

       trial court properly denied Parker’s request for a hearing to present his “new”

       evidence.

Parker II, 178 Ohio App.3d 574, 577-578, at ¶ 21.

       {¶ 12} Further, we found that the information in Wilt’s affidavit amounted to only a

partial recantation of her trial testimony:

       Specifically, Wilt avers that she was “not entirely truthful” when she testified

       against Parker. She additionally avers that although she does not know who

       struck her in the head, she is sure that it was not Parker. At best, these

       statements merely render Wilt’s trial testimony suspect.       The averments,

       however, do not completely undermine Wilt’s testimony to the extent that

       they represent a complete recantation of said testimony, nor do they exculpate

       Parker.

Parker II, 178 Ohio App.3d 574, 578, at ¶ 22.

       {¶ 13} Lastly, we noted that Parker extensively cross-examined Wilt during trial,

and therefore had ample opportunity to discover whether she was coerced by the State into

falsely implicating him as her assailant. We found there was no reason that Parker could

not have attempted to impeach Wilt’s testimony and credibility on this point at trial. Thus,

Wilt’s affidavit failed to establish by clear and convincing evidence that Parker was

unavoidably prevented from discovering the new evidence he relied upon in his motion for
                                                                                             6

leave to file a delayed motion for new trial. Because we already rejected Parker’s argument

regarding Wilt’s affidavit in Parker II, he is barred by res judicata from claiming that he was

unavoidably prevented from discovering said affidavit, and we will not consider it in the

instant case in support of his untimely motion for leave to file a delayed petition for

post-conviction relief.

       {¶ 14} As previously stated, Parker does not dispute that his motion was not filed in

a timely manner pursuant to R.C. § 2953.21(A)(2) which provides in pertinent part:

       Except as otherwise provided in section 2953.23 of the Revised Code, a

       petition under division (A)(1) of this section shall be filed no later than one

       hundred eighty [180] 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 or

       adjudication or, if the direct appeal involves a sentence of death, the date on

       which the trial transcript is filed in the supreme court. ***

       {¶ 15} R.C. § 2953.23 prohibits a trial court from entertaining a late petition unless

both of the following provisions apply:

       a. either the petitioner shows that he 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 the filing of an earlier petition, the United States Supreme 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
[Cite as State v. Parker, 2013-Ohio-3177.]
        b. the petitioner shows by clear and convincing evidence that, but for

        constitutional error at trial, no reasonable fact finder would have found the

        petitioner guilty of the offense of which the petitioner was convicted ***.

        {¶ 16} A trial court lacks jurisdiction to hear an untimely filed petition for

post-conviction relief if the two conditions of R.C. § 2953.23(A)(1) are not satisfied. State v.

Melhado, 10th Dist. Franklin No. 05AP-272, 2006-Ohio-641. It should be noted that Parker

has made no assertion that the U.S. Supreme Court has announced any new state or federal

right that would apply retroactively to him. Thus, we need only address whether Parker

affirmatively demonstrated that he was unavoidably prevented from discovery of the facts

upon which he must rely to present a meritorious claim for relief. R.C. 2953.23(A)(1)(a).

        {¶ 17} Upon review, we reject Brandy Matheny’s affidavit for essentially the same

reasons as we rejected Wilt’s affidavit in Parker II. Matheny’s affidavit fails to establish

how Parker was unavoidably prevented from discovering her recantation because it does not

explain how the information came to light and/or why there was such a long delay in

obtaining it. Parker II, 178 Ohio App.3d 574, 577-578, at ¶ 21. The only explanation

provided by Parker regarding why he was prevented from discovering Matheny’s “false”

testimony is that he has been incarcerated since early 2006 and has had no contact with her.

The mere fact of Parker’s incarceration does not amount to clear and convincing evidence

that he was unavoidably prevented from discovering the evidence within the time limit. Id.;

see also State v. Smith, 2d Dist. Miami No. 97-CA-46, 1998 WL 404458 (March 27, 1998).

Without more, the trial court properly denied Parker’s request for a hearing to present his

“new” evidence.

        {¶ 18} Moreover, Parker had the opportunity to cross-examine Matheny at trial. If
                                                                                            8

Matheny offered false testimony regarding the extent of Parker’s involvement in the assault,

Parker would have been aware of her dishonesty and been able to question her on that issue

as it is undisputed that Parker was present when the offenses occurred. Parker had ample

opportunity at trial to attempt to discover whether Matheny was coerced by the State into

falsely implicating him as Wilt’s assailant, and there was no reason that Parker could not

have attempted to impeach Matheny’s testimony and credibility on these points at trial.

Thus, Parker was clearly not unavoidably prevented from discovering Matheny’s “new”

evidence.

       {¶ 19} Significantly, we note that in her affidavit, Matheny does not claim that the

prosecutor was aware that she allegedly testified falsely at trial.       Evidence of perjury,

without proof of knowledge on the part of the prosecution of that perjury, does not implicate

constitutional rights and therefore, does not support a petition for post-conviction relief.

State v. Clark, 2d Dist. Montgomery No. 16463, 1998 WL 271853 (May 29, 1998).

Accordingly, Parker has failed to establish that Matheny’s recantation amounts to a

constitutional error that can be addressed by a petition for post-conviction relief.

       {¶ 20} We also note that Matheny’s affidavit does not exonerate Parker. In her

affidavit, Matheny does not claim that Parker is innocent. Rather, Matheny merely avers

that she did not witness Wilt’s assault and kidnapping. In light of the foregoing, the trial

court did not err when it dismissed his motion for leave to file a delayed petition for

post-conviction relief without an evidentiary hearing.

       {¶ 21} Parker’s first and second assignments of error are overruled.

       {¶ 22} All of Parker’s assignments of error having been overruled, the judgment of
                                              9

the trial court is affirmed.

                                 ..........

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

R. Lynn Nothstine
Ronald Parker III
Hon. Mary L. Wiseman
