[Cite as State v. Upham, 2018-Ohio-625.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-17-1060

        Appellee                                 Trial Court No. CR0201101176

v.

Steven T. Upham                                  DECISION AND JUDGMENT

        Appellant                                Decided: February 16, 2018

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Andrew J. Lastra, Assistant Prosecuting Attorney, for appellee.

        Steven Upham, pro se.

                                           *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a February 17, 2017 judgment of the Lucas County

Court of Common Pleas, denying appellant’s untimely motion for postconviction relief

arising from appellant’s 2011 conviction of one count of complicity to commit murder, in

violation of R.C. 2923.02, with an accompanying firearm specification.
         {¶ 2} On April 14, 2011, appellant was sentenced to a total term of incarceration

of 13 years. For the reasons set forth below, this court affirms the judgment of the trial

court.

         {¶ 3} Appellant, Steven Upham, sets forth the following assignment of error:

                The trial court abused its discretion when it dismissed appellant’s

         motion to dismiss or to support a conviction in the event that one should be

         had in violation of [the] 5[th] amendment and [the] 14[th] amendment due

         process.

         {¶ 4} The following undisputed facts are relevant to this appeal. On the night of

January 22, 2011, appellant called a former girlfriend and requested that she pick him up

and transport him to another location for purposes of buying heroin.

         {¶ 5} After driving the victim’s vehicle several blocks away from the initial

location to a nearby West Toledo intersection, appellant stopped the car, pulled out a

firearm, and shot the victim in the left side of her head. Appellant fled the scene. The

victim was able to drive the vehicle to a nearby carryout. The carryout personnel

summoned emergency medical personnel and the victim was transported to an area

hospital.

         {¶ 6} The victim’s injuries from the shooting required in excess of 100 stitches

and resulted in left eye damage.




2.
       {¶ 7} On January 31, 2011, appellant was indicted on two counts of felonious

assault with a firearm, in violation of R.C. 2903.11, felonies of the second degree, and

one count of attempted murder, in violation of R.C. 2923.02, a felony of the first degree.

       {¶ 8} On April 12, 2011, the case proceeded to jury trial. Following jury trial,

appellant was found guilty of attempted murder with an accompanying firearm

specification, in violation of R.C. 2923.02, and sentenced to a total term of incarceration

of 13 years.

       {¶ 9} Prior to the present matter, appellant filed a direct appeal to this court. On

January 18, 2013, this court affirmed the conviction and sentence of the trial court. State

v. Upham, 6th Dist. Lucas No. L-11-1088, 2013-Ohio-132.

       {¶ 10} On January 30, 2017, over four years after this court’s denial of appellant’s

direct appeal, appellant filed a, “Motion to Dismiss or to Support a Conviction,” the

contents of which constituted a motion for postconviction relief.

       {¶ 11} On February 17, 2017, the trial court denied appellant’s motion. The trial

court held in pertinent part, “The Court finds that the Defendant has not been

unavoidably prevented from discovering the facts * * * Defendant’s motion/petition is

untimely, without excuse, and the court has no jurisdiction to consider his motion.

Additionally, res judicata bars Defendant’s motion/petition.” This appeal ensued.

       {¶ 12} In appellant’s sole assignment of error, appellant maintains that the trial

court erred in denying appellant’s 2017 motion related to his 2011 case. We do not

concur.




3.
       {¶ 13} R.C. 2953.21 establishes that a petition for postconviction relief must be

filed within 180 days after the day upon which trial transcripts are filed in the course of a

direct appeal. R.C. 2953.23 permits an untimely filing conditioned upon a movant

establishing that he was, “[U]navoidably prevented from discovering the facts upon

which he relied for his claim.”

       {¶ 14} The record reflects that the filing of the transcripts in appellant’s direct

appeal of his 2011 conviction occurred in 2012. The record further reflects that

appellant’s direct appeal was denied on January 18, 2013. The record reflects that

appellant’s current motion for postconviction relief was filed approximately four years

after the expiration of the applicable statutory filing deadline. Lastly, the record reflects

that appellant presented no evidence demonstrating unavoidable prevention of fact

discovery so as to arguably warrant the untimely filing.

       {¶ 15} Based upon the foregoing, this court finds that the trial court properly

denied appellant’s January 30, 2017 motion for postconviction relief. The record is

devoid of any evidence that could arguably demonstrate the disputed motion denial to be

improper. Wherefore, we find appellant’s assignment of error to be not well-taken.

       {¶ 16} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                          Judgment affirmed.




4.
                                                                      State v. Upham
                                                                      C.A. No. L-17-1060




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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