[Cite as State v. Hutzler, 2012-Ohio-6107.]


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

STATE OF OHIO                                          C.A. No.       26484

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DAVID M. HUTZLER                                       COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2002-03-0592

                                  DECISION AND JOURNAL ENTRY

Dated: December 26, 2012



        CARR, Judge.

        {¶1}     Appellant, David Hutzler, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                                  I.

        {¶2}     This matter arises from the murder of Danielle Maximovich on April 5, 2000.

        {¶3}     On March 14, 2002, the Summit County Grand Jury indicted Hutzler on one

count of aggravated murder with a firearm specification, one count of aggravated robbery with a

firearm specification, and one count of aggravated burglary with a firearm specification.

Following a jury trial, Hutzler was convicted of all charges in the indictment. On October 30,

2002, Hutzler was ordered to serve a total sentence of forty-three years to life imprisonment.

        {¶4}     Hutzler filed a direct appeal to this Court and raised nine assignments of error. In

our decision released on December 31, 2003, this Court overruled all nine assignments of error

and affirmed Hutzler’s conviction and sentence. State v. Hutzler, 9th Dist. No. 21343, 2003-
                                                   2


Ohio-7193. The Supreme Court of Ohio declined to accept jurisdiction over Hutzler’s appeal.

State v. Hutzler, 102 Ohio St.3d 1459, 2004-Ohio-2569.

          {¶5}   More than eight years after his conviction, on March 9, 2012, Hutzler filed a

petition for post-conviction relief pursuant to R.C. 2953.21. The State responded in opposition

on March 14, 2012. On May 18, 2012, the trial court denied the petition on the basis that is was

untimely.

          {¶6}   Hutzler filed a notice of appeal on June 12, 2012. On appeal, Hutzler raises one

assignment of error.

                                                  II.

                                    ASSIGNMENT OF ERROR

          THE TRIAL COURT ERRED IN DENYING MR. HUTZLER’S PETITION TO
          VACATE WHEN HE ESTABLISHED THAT HE WAS ACTUALLY
          INNOCENT OF THE CHARGES UPON WHICH HE HAD BEEN
          CONVICTED.

          {¶7}   In his sole assignment of error, Hutzler argues that the trial court erred in denying

his petition for post-conviction relief because he established that he was actually innocent. This

Court disagrees.

          {¶8}   In support of his argument, Hutzler asserts that trial counsel rendered ineffective

assistance by failing to call a material witness and by failing to challenge the evidence that his

blood droppings were found at the scene of the crime. Hutzler argues that he should be able to

circumvent the procedural requirements of R.C. 2953.21 and 2953.23 on the basis that he

supplemented the constitutional claim raised in his petition with evidence demonstrating his

actual innocence. In support of this position, Hutzler relies on the decisions of the United States

Supreme Court in Herrera v. Collins, 506 U.S. 390 (1993) and Sawyer v. Whitley, 505 U.S. 333

(1992).
                                                3


       {¶9}    Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief must be filed

no later than 180 days after the day the trial transcript is filed in the direct appeal from the

judgment of conviction and sentence, or, if no direct appeal is taken, 180 days after the

expiration of the time to file an appeal. See App.R. 3(A) and 4(A). A trial court is not permitted

to entertain a petition that is filed after the timeframe unless the conditions of R.C.

2953.23(A)(1) or (A)(2) are met. State v. Hoffmeyer, 9th Dist. No. 25477, 2011-Ohio-1046, ¶ 7;

R.C. 2953.23(A). Specifically, R.C. 2953.23(A) states:

       Whether a hearing is or is not held on a petition filed pursuant to section 2953.21
       of the Revised Code, a court may not entertain a petition filed after the expiration
       of the period prescribed in division (A) of that section or a second petition or
       successive petitions for similar relief on behalf of a petitioner unless division
       (A)(1) or (2) of this section applies:

       (1) Both of the following apply:

       (a) Either the petitioner shows that the petitioner 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 division (A)(2) of section
       2953.21 of the Revised Code or to the filing of an earlier petition, 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.

       (b) The petitioner 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 or, if the
       claim challenges a sentence of death that, but for constitutional error at the
       sentencing hearing, no reasonable factfinder would have found the petitioner
       eligible for the death sentence.

       (2) The petitioner was convicted of a felony, the petitioner is an offender for
       whom DNA testing was performed under sections 2953.71 to 2953.81 of the
       Revised Code or under former section 2953.82 of the Revised Code and analyzed
       in the context of and upon consideration of all available admissible evidence
       related to the inmate’s case as described in division (D) of section 2953.74 of the
       Revised Code, and the results of the DNA testing establish, by clear and
       convincing evidence, actual innocence of that felony offense or, if the person was
       sentenced to death, establish, by clear and convincing evidence, actual innocence
       of the aggravating circumstance or circumstances the person was found guilty of
       committing and that is or are the basis of that sentence of death.
                                                 4


       {¶10} In this case, the trial court properly denied Hutzler’s petition for post-conviction

relief on the basis that it was untimely. Hutzler filed his petition more than eight years after his

conviction, well past the deadline set forth in R.C. 2953.21(A)(2).           Hutzler has neither

demonstrated that he was unavoidably prevented from discovering the facts upon which he must

rely to present his claim, nor has he demonstrated that the results of DNA testing established his

actual innocence by clear and convincing evidence. Hutzler acknowledges as much in his brief,

noting that he “understood that he could not meet the requirements of [R.C.] 2953.21” at the time

he filed his petition for post-conviction relief. Instead, Hutzler asserts that his actual innocence

claim was “a gateway to avoid the procedural default argument[.]” While Hutzler’s argument is

predicated on the United States Supreme Court’s decisions in Herrera and Sawyer, we note that

both of those cases dealt with “actual innocence” claims in the context of federal habeas corpus

petitions, not state post-conviction relief statutes. As the instant matter arises from Hutzler’s

petition for relief under the Ohio post-conviction relief statute, he was required to comply with

the requirements set forth in R.C. 2953.21 and R.C. 2953.23. As he has failed to do so, the trial

court properly denied his petition.

       {¶11} The assignment of error is overruled.

                                                III.

       {¶12} Hutzler’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 5


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

Pleas, County of Summit, 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.




                                                     DONNA J. CARR
                                                     FOR THE COURT



MOORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

NATHAN A. RAY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
