[Cite as State v. Baker, 2017-Ohio-8602.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   C.A. CASE NO. 27596
                                                  :
 v.                                               :   T.C. NO. 11-CR-4317/2
                                                  :
 LARRY BAKER                                      :   (Criminal Appeal from
                                                  :    Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                          Rendered on the 17th day of November, 2017.

                                             ...........

SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

LARRY BAKER, Inmate No. 686670, Warren Correctional Institute, P. O. Box 120,
Lebanon, Ohio 45036
     Defendant-Appellant

                                            .............

FROELICH, J.
                                                                                         -2-




       {¶ 1} Larry Baker, pro se, appeals from a judgment of the Montgomery County

Court of Common Pleas, which overruled his “motion for newly discovered evidence” and,

in the alternative, his “motion pursuant to Crim.R. 52(B).” For the following reasons, the

trial court’s judgment will be affirmed.

                         I. Background and Procedural History

       {¶ 2} Baker’s offenses stemmed from a robbery and shooting at the Cash and Go

pawn shop on December 22, 2011. Baker and two accomplices, Darren Taylor and

Anthony Dewayne McClain, were alleged to have driven to the pawn shop from Detroit

that morning and to have robbed the shop and shot its employee, Ilya Golub. Golub

returned fire, striking McClain, but the three perpetrators managed to flee and returned to

Detroit. Golub and McClain died from their gunshot wounds.

       {¶ 3} In June 2013, a jury found Baker guilty of four counts of murder, one count

of aggravated robbery, and one count of felonious assault, each with a firearm

specification.   After merging several offenses and specifications, the trial court

sentenced Baker to two consecutive terms of 15 years to life on each of two counts of

murder (Counts 1 and 5) and to three additional years on each of the firearm

specifications for those counts. Baker’s aggregate sentence was 36 years to life in

prison, plus restitution, extradition costs, and court costs. We affirmed his conviction on

direct appeal. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163.

       {¶ 4} On February 19, 2014, Baker filed a petition for post-conviction relief. He

alleged that his trial counsel had rendered ineffective assistance by (1) not calling one of

the other perpetrators of the crime, Darren Taylor, as a witness to “clear [Baker] of any
                                                                                            -3-


wrongdoing,” and (2) failing to present evidence that Baker had called the police “to report

the incident” when he got back to Detroit. According to Baker, this evidence would have

supported his position that, if he were “guilty of anything, it’s being guilty by association,”

or being with the wrong people at the wrong time. The State filed an answer to the

petition and a motion for summary judgment. The trial court denied Baker’s petition and

granted the State’s motion for summary judgment without a hearing. We affirmed the

trial court’s ruling. State v. Baker, 2d Dist. Montgomery No. 26252, 2015-Ohio-338.

       {¶ 5} On February 21, 2017, Baker filed a “motion for newly discovered evidence

and in alternative motion pursuant to Criminal R.52(B) [plain error].” Baker alleged that,

sometime prior to trial, the prosecutor’s office made a plea offer that the State would

recommend a sentence between 20 and 24 years in exchange for a guilty plea. Baker’s

motion further alleged that his “counsel reported this plea deal to the affiants, but not to

the Defendant. Defendant was always informed that it would be fruitless to seek plea

negotiations because counsel was sure that with the evidence that Defendant would be

vindicated on some of the charges.” Baker claimed that, but for counsel’s actions, he

would have accepted the plea offer, and he sought reinstatement of the offer.

       {¶ 6} Baker supported his motion with a verified copy of a letter from his mother,

which stated:

       November 22, 2016

       To Whom It May Concern,

       I contacted the lawyer in the year 2013, during the time my son, Larry Baker,

       Jr. was going to trial and I asked the lawyer, “What was going on with the

       case[,”] and he said, [“]I don’t know why he didn’t take the eighteen (18)
                                                                                          -4-


       years offered.”

       I am writing to have my son[’s] case reviewed.

       Thank you,

       [Signature and printed name]

Baker did not submit his own affidavit or an affidavit from his trial counsel, and he did not

cite to any portion of the record.

       {¶ 7} The State opposed Baker’s motion, arguing that the motion constituted a

petition for post-conviction relief based on newly discovered evidence, and that the

petition was untimely. The State further argued that the petition should be denied on the

merits, because no plea offer was made to Baker and Baker did not support his petition

with any reliable evidence.

       {¶ 8} On April 20, 2017, the trial court denied Baker’s motion. It reasoned:

              Defendant does not support his Motion with any tangible evidence

       that he was unavoidably prevented from learning about plea negotiations in

       2013. Defendant also has also [sic] previous exercised his rights to appeal

       his conviction and could have raised any claim against his defense attorney

       at that time. Issues raised on direct appeal or that could have been raised

       on appeal are barred by the doctrine of res judicata from being raised in a

       petition for post-conviction relief. All of the claims of the Defendant fall

       within the category of issues that could have been raised in his previous

       appeals. The only evidence Defendant submits to the Court in support of

       his Motion is an affidavit from his mother, which is hearsay at best.

       Defendant proffered neither a transcript from final pretrial in relation to plea
                                                                                            -5-


       negotiations, nor an affidavit from defense counsel supporting Defendant’s

       proposition.

       {¶ 9} Baker appeals from the trial court’s April 20, 2017 judgment.           His sole

assignment of error claims that his counsel “was ineffective for not investigating the plea

offer by the State.”

                   II. Post-Conviction Relief (Ineffective Assistance)

       {¶ 10} Baker’s “motion for newly discovered evidence” sought to modify his

sentence due to a violation of a constitutional right, namely his Sixth Amendment right to

the effective assistance counsel. Although couched as a motion, Baker’s request is

more properly construed as a petition for post-conviction relief.

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

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 (federal or Ohio) may petition the trial court to vacate or set aside

the judgment and sentence. R.C. 2953.21(A). A post-conviction proceeding is not an

appeal of a criminal conviction; it is a collateral civil attack on the judgment. State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48, citing State v.

Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); R.C. 2953.21(K).               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. Steffen, 70 Ohio St.3d at 410.

       {¶ 12} When a direct appeal of the judgment of conviction has been taken (as in

Baker’s case), a petition for post-conviction relief must be filed no later than 365 days
                                                                                             -6-


“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). Trial courts

lack jurisdiction to consider an untimely or successive petition for post-conviction relief,

unless the untimeliness is excused under R.C. 2953.23(A). State v. Current, 2d Dist.

Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 16.

         {¶ 13} Pursuant to R.C. 2953.23(A)(1)(a), a defendant may not file an untimely or

successive petition for post-conviction relief unless (1) the defendant was unavoidably

prevented from discovering the facts upon which he or she relies to present the claim, or

(2) the United States Supreme Court recognizes a new federal or state right that applies

retroactively to his or her situation and the petition asserts a claim based on that right.

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

constitutional error from which he suffered, no reasonable factfinder would have found

him guilty. R.C. 2953.23(A)(1)(b).

         {¶ 14} Baker filed his “motion for newly discovered evidence” on February 21,

2017, approximately 3½ years after his trial transcripts were filed in his direct appeal.

Baker does not claim that he was unavoidably prevented from discovering the facts

underlying his ineffective assistance claim, nor does he rely on a new federal or state

right.   Stated simply, Baker has not established that the untimeliness of his petition

should be excused under R.C. 2953.23(A). The trial court properly overruled his motion

on that basis.

         {¶ 15} Even if we were to consider the merits of Baker’s motion, we would agree

with the trial court that Baker has not established that his trial attorney rendered ineffective

assistance during plea bargaining. To establish the ineffective assistance of counsel, a
                                                                                        -7-


defendant must demonstrate that counsel’s performance was deficient and fell below an

objective standard of reasonable representation, and that the defendant was prejudiced

by counsel’s performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

       {¶ 16} Baker’s appellate brief includes a detailed discussion of a defendant’s Sixth

Amendment right to the effective assistance of counsel during the plea-bargaining

process, and we agree with many of Baker’s general statements of the law. See, e.g.,

Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). However,

Baker has provided no evidence that he was offered the plea deal he alleges (in exchange

for a guilty plea, he would serve no less than 20 years, but no more than 24 years in

prison), nor has he provided evidence that he would have accepted any such plea offer.

(The State asserts that it made no plea offers, but the State has provided no evidence to

support that claim.) The sole evidence before us -- the letter from Baker’s mother --

indicates that the State made a plea offer of 18 years in prison, but the letter further

indicates that the offer was conveyed to Baker and was rejected by Baker against the

advice of counsel.    Accordingly, even if we were to consider the merits of Baker’s

ineffective assistance of counsel claim, his evidence (the letter) does not demonstrate

that his trial counsel acted deficiently during the plea bargaining process.

       {¶ 17} Baker’s assignment of error is overruled.

                                      III. Conclusion

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

                                         .............

HALL, P.J. and DONOVAN, J., concur.
                        -8-




Copies mailed to:

Sarah E. Hutnik
Larry Baker
Hon. Dennis J. Adkins
