[Cite as State v. Anderson, 2013-Ohio-4426.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                 :      OPINION

                 Plaintiff-Appellee,           :
                                                      CASE NO. 2013-T-0041
        - vs -                                 :

TIMOTHY R. ANDERSON,                           :

                 Defendant-Appellant.          :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2008 CR
515.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Timothy R. Anderson, pro se, PID# A563864, Trumbull Correctional Institution, P.O.
Box 901, Leavittsburg, OH 44430 (Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Timothy R. Anderson, appeals from the Judgment

Entry of the Trumbull County Court of Common Pleas, dismissing his Application on

Petition for Post-Conviction Relief. The issue to be determined by this court is whether

a postconviction petition may be dismissed when it is untimely and the defendant fails to

provide any basis for its lateness. For the following reasons, we affirm the decision of

the trial court.
      {¶2}   On July 16, 2008, the Trumbull County Grand Jury issued an Indictment,

charging Anderson with one count of Aggravated Robbery, a felony of the first degree,

in violation of R.C. 2911.01(A)(2) and (C), and two counts of Felonious Assault, felonies

of the second degree, in violation of R.C. 2903.11(A)(2) and (D). Each count had a

firearm specification, pursuant to R.C. 2941.145.

      {¶3}   The charges were related to a robbery of the Lincoln School in Warren,

Ohio, the facts of which are outlined in State v. Anderson, 11th Dist. Trumbull No. 2009-

T-0041, 2010-Ohio-2291.

      {¶4}   On October 3, 2008, Anderson entered a written plea of guilty to the

charges, which was accepted by the trial court.       Anderson subsequently filed two

Motions to Withdraw Plea, asserting, inter alia, that he did not understand the

consequences of entering a guilty plea. The court granted his request to withdraw his

plea on January 26, 2009.

      {¶5}   Following a jury trial, Anderson was found guilty on all charges. He was

sentenced to serve an aggregate prison term of sixteen years and ordered to pay

restitution to the Warren City Schools in the amount of $11,180.

      {¶6}   Anderson appealed his conviction, which this court affirmed, holding that

his convictions were not against the weight of the evidence, there were no grounds for a

mistrial, he was not denied the right to counsel, and his suppression motion was

properly denied by the trial court. Anderson, 2010-Ohio-2291.

      {¶7}   Anderson filed an Application on Petition for Post-Conviction Relief on

November 16, 2012, asserting that trial counsel improperly advised him to withdraw his

plea and proceed to trial, a decision which ultimately caused him to receive a greater




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sentence than he otherwise would have under the plea agreement. Anderson argued

that this demonstrates that trial counsel was ineffective and breached his duty owed to

Anderson. He admitted that the petition was untimely but stated that it was the result of

a “new fact of constitutional law involving the Sixth Amendment protections of efficient

performance of counsel” in all criminal proceedings.

       {¶8}   On January 25, 2013, the State filed a Motion to Dismiss, asserting that

the trial court was without jurisdiction to consider the Petition. On March 20, 2013, the

trial court issued a Judgment Entry, dismissing Anderson’s Petition. The court held that

the Petition was untimely and no valid reason was provided for the delayed filing. It

held that Anderson failed to present any facts that he was “unavoidably prevented” from

discovering or any new right that applied retroactively.

       {¶9}   Anderson timely appeals and raises the following assignment of error:

       {¶10} “The trial [court] abused its discretion, when the post-conviction relief met

the untimely and unavoidable delayed prong premised on the relief of the claim rested

on contract law standards, that govern plea agreements.” [sic]

       {¶11} In his sole assignment of error, Anderson argues that the trial court erred

in dismissing his postconviction Petition, since there was a “breach of contract” due to

his counsel’s “ill-advice” and “misadvisement” regarding the withdrawal of his guilty plea

and the decision to proceed to trial.

       {¶12} The State argues that Anderson failed to provide any argument to

contradict the trial court’s conclusion that the Petition must be dismissed since it was

untimely filed.

       {¶13} “[I]n a postconviction case involving a claim of ineffective assistance of




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trial counsel[,] ‘[a]bsent a showing of abuse of discretion, a reviewing court will not

overrule the trial court’s finding on a petition for post-conviction relief which is supported

by competent and credible evidence.’” (Citation omitted.) State v. Knapp, 11th Dist.

Ashtabula No. 2012-A-0035, 2013-Ohio-870, ¶ 30; State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58 (“a trial court’s decision granting or denying

a postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an

abuse of discretion”).

       {¶14} Since a postconviction proceeding is a collateral civil attack on a criminal

judgment, “postconviction relief is not a constitutional right, but instead is afforded to a

convicted defendant as a statutory remedy,” and certain statutory provisions must be

met. (Citations omitted.) State v. Miller, 11th Dist. Trumbull No. 2012-T-0007, 2012-

Ohio-4895, ¶ 9.

       {¶15} In the present case, although Anderson argues only the merits of his

postconviction claim in his appellate brief, his Petition was dismissed due to its

untimeliness. “[T]he requirement that a petition for postconviction relief be timely filed

has been considered a ‘jurisdictional’ prerequisite to a consideration of the merits.”

State v. Scott, 11th Dist. Trumbull No. 2011-T-0027, 2011-Ohio-4887, ¶ 21; State v.

Rice, 11th Dist. Ashtabula No. 2010-A-0046, 2011-Ohio-3746, ¶ 20 (“unless the petition

is filed timely, the court is not permitted to consider the substantive merits of the

petition”); State v. Beaver, 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (11th Dist.1998)

(holding that the trial court should have summarily dismissed an untimely petition

without addressing the merits).

       {¶16} A petition for postconviction relief “shall be filed no later than one hundred




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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 or adjudication.” R.C. 2953.21(A)(2). A

court may entertain an untimely petition only under limited circumstances, including

when the petitioner demonstrates that he was either “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 also “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)(a) and (b).

       {¶17} In the present matter, the trial transcript was filed in Anderson’s direct

appeal on July 17, 2009. Thus, Anderson’s petition was due by January 13, 2010.

Anderson’s November 16, 2013 Application on Petition for Post-Conviction Relief is

untimely by over two and a half years. In order for the court to consider the merits of his

Petition, Anderson must first show that he met the statutory requirements outlined

above.

       {¶18} In his Petition, Anderson advanced no arguments to support a conclusion

that he was unavoidably prevented from discovering the facts necessary to proceeding

with his petition. To the contrary, the merits of his Petition relate to issues that occurred

during his plea bargaining process, which he was aware of both at the time of the

criminal proceedings and during his direct appeal.

       {¶19} Anderson cited several recently decided United States Supreme Court

cases, Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and




                                             5
Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), in support of

his assertion that he received ineffective assistance of counsel during plea negotiations

and plea bargaining.1 He does not explicitly state that these cases provided him with a

new right that justifies an untimely petition, although he did note generally, as his only

explanation for his untimely petition, that there was a “new fact of constitutional law

involving the Sixth Amendment protections of efficient performance of counsel at all

critical stages of all judicial proceedings and at pretrial stages.”            Lafler and Frye held

that the Sixth Amendment right to counsel is violated when a defendant is given

constitutionally deficient advice which causes him to reject a plea bargain or is not

informed of a plea offer and is subject to a longer sentence because of this advice.

Lafler at 1385; Frye at 1408.

        {¶20} These cases do not recognize a “new federal or state right that applies

retroactively to persons in the petitioner’s situation,” such that they would justify the

filing of an untimely postconviction petition. Ohio appellate courts, as well as federal

courts, have held that Lafler and Frye do not create a new retroactive right, since the

Supreme Court, “was rather explicit that it was not creating a new right, but applying the

existing right to effective assistance of counsel and test from Strickland.” State v. Hicks,

8th Dist. Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 13, citing Hestle v. United States,

E.D.Mich. No. 05-40245, 2013 U.S. Dist. LEXIS 37886, 23 (Mar. 19, 2013); State v. Isa,

2nd Dist. Champaign No. 2012-CA-44, 2013-Ohio-3382, ¶ 9 (“neither case establishes

a new right or announces a new rule of constitutional law,” since they “simply examined


1. Anderson also cites Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct.1473, 176 L.Ed.2d 284 (2010).
Padilla involves a court’s failure to advise a defendant of the risk of deportation as a consequence of a
criminal conviction, which is not relevant in the present matter.



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a defendant’s existing right to the effective assistance of counsel in the context of plea

bargaining”); State v. Williams, 4th Dist. Lawrence No. 12CA22, 2013-Ohio-2989, ¶ 14.

It 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.” Hestle at 24; United States v. Garcia-

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

       {¶21} We agree with the analysis in these decisions and hold that Lafler and

Frye do not create a new right that applies retroactively and, therefore, provide no basis

for an untimely postconviction petition.

       {¶22} Since Anderson has failed to raise any acceptable grounds under R.C.

2953.23(A) for filing an untimely petition, the trial court properly dismissed his Petition

without proceeding to a consideration of the merits.

       {¶23} The sole assignment of error is without merit.

       {¶24} For the foregoing reasons, the Judgment Entry of the Trumbull County

Court of Common Pleas, dismissing Anderson’s Application on Petition for Post-

Conviction Relief, is affirmed. Costs to be taxed against appellant.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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