[Cite as State v. Capers, 2012-Ohio-2683.]


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

STATE OF OHIO                                         C.A. No.       11CA010085

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
LAMAR M. CAPERS                                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   09CR079681

                                 DECISION AND JOURNAL ENTRY

Dated: June 18, 2012



        CARR, Judge.

        {¶1}     Appellant, Lamar M. Capers, appeals the judgment of the Lorain County Court of

Common Pleas denying his petition for post-conviction relief. This Court affirms.

                                                 I.

        {¶2}     This case arises of out a dispute between Capers and his girlfriend which occurred

during the early morning hours of December 15, 2009. On January 28, 2010, the Lorain County

Grand Jury indicted Capers on one count of discharging a firearm into a habitation with a repeat

violent offender specification; one count of having a weapon while under disability due to a prior

conviction for a felony offense of violence with a firearm specification; one count of having a

weapon while under disability due to a prior drug conviction with a firearm specification; one

count of possession of drugs; one count of aggravated menacing; and one count of domestic

violence. After a bench trial, Capers was found guilty of both counts of having a weapon while

under disability with a firearm specification, possession of cocaine, and aggravated menacing.
                                                 2


The trial court found Capers not guilty of discharging a firearm into a habitation and not guilty of

domestic violence. The trial court subsequently merged the two counts of having a weapon

while under disability, along with the related firearm specifications. Capers was sentenced to a

total of seven years in prison. On direct appeal, this Court affirmed Capers’ convictions but

remanded for the proper imposition of post-release control. State v. Capers, 9th Dist. No.

10CA009801, 2011-Ohio-2443, appeal not accepted, 129 Ohio St.3d 1506, 2011-Ohio-5358.

       {¶3}    On June 27, 2011, Capers filed a pro se petition for post-conviction relief

pursuant to R.C. 2953.23, asserting that his conviction was void in regard to the firearm

specification. In support of his position, Capers argued that the Department of Rehabilitation

and Corrections violated the separation of powers doctrine by reopening and modifying one of

his prior judgments of conviction, rendering him susceptible to the charge of having weapons

while under disability with a firearm specification in the instant case. On September 15, 2011,

the trial court issued a journal entry denying the petition on the basis that it was untimely

pursuant to R.C. 2953.21(A)(2).

       {¶4}    Capers filed a notice of appeal on October 13, 2011. On appeal, he raises two

assignments of error. We consolidate those assignments of error to facilitate review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       TRIAL COURT ABUSED ITS DISCRETION BY ENTERING JUDGMENT
       THAT EVINCES A PERVERSITY OF WILL, DEFIANCE OF JUDGMENT
       AND/OR EXERCISE OF PASSION OR BIAS.

                                  ASSIGNMENT OF ERROR II

       TRIAL COURT FAILED TO EXERCISE DISCRETION IN MATTERS OF
       MERITS UNDERPINNING UNTIMELY PETIT[I]ON.
                                                3


       {¶5}    In his first and second assignments of error, Capers argues that the trial court

erred and abused its discretion by denying his petition. This Court disagrees.

       {¶6}    In support of his first assignment of error, Capers argues that the trial court was

precluded from concluding it lacked authority to rule on his petition for post-conviction relief

after it issued a journal entry in which it set a deadline for the State to respond. Capers reasons

that by setting a deadline for the State to respond, the trial court implicitly concluded that the

“specific facts plead could withstand dismissal.” In his second assignment of error, Capers

argues that the trial court failed to recognize that he had submitted evidentiary materials which

demonstrated that his petition was properly before the court, and warranted analysis under R.C.

2953.23.   Capers further asserts that because he claimed in his petition that his firearm

specification conviction was void, the trial court had authority to address his petition because

timeliness is not an issue in matters involving void judgments.

       {¶7}    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:

       (A) 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:
                                                 4


       (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.

       {¶8}    In this case, the trial court properly denied Capers’ petition for post-conviction

relief on the basis that it was untimely. As an initial matter, we note that the trial court’s

issuance of a mere scheduling order providing the State with a deadline to respond to Capers’

petition did not equate to a substantive determination that the trial court had authority to rule on

the merits of the petition. With respect to the specific posture of this case, the trial transcript

from Capers’ direct appeal in Case No. 10CA009801 was filed in this Court on September 24,

2010. Capers filed his petition in the trial court on June 27, 2011, approximately three months

after the 180-day window set forth in R.C. 2953.21(A)(2) had closed. In his petition, Capers

appeared to assert that he was unavoidably prevented from discovering the facts necessary to

support his claim by stating that he “ha[d] just been able to persuade his dorm case manager that

[the] demands of R.C. 5120.21(A) must yield to public interest in justice.” The only evidence

Capers offered in support of his petition were his prior sentencing entries, as well as printouts

from the “Departmental Offender Tracking System Portal.” As Capers failed to offer any

explanation as to why the sentencing information contained in the documents attached to his

petition was not either known or could have been known at the time of trial, Capers did not

demonstrate that his untimely filing was justified pursuant R.C. 2953.21(A)(1). While Capers
                                                  5


argues on appeal that the trial court failed to properly analyze his petition, the trial court’s

judgment entry did include a discussion of when the petition had been filed and why it was

untimely pursuant to R.C. 2953.21(A)(2). Moreover, the Supreme Court of Ohio has held that a

trial court need not issue findings of fact and conclusions of law when it dismisses a petition as

untimely. State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, ¶ 6, see also

State v. McGee, 9th Dist. No. 01CA007952, 2002-Ohio-4249, ¶ 11-13. Furthermore, while

Capers asserts that the trial court’s judgment was void and points to the Supreme Court of Ohio’s

decision in State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, we note that his claims fell

squarely within the scope of a petition for post-conviction relief as he alleged constitutional

violates. As Capers’ motion was, in fact, a petition for post-conviction relief, he was subject to

the requirements of R.C. 2953.21(A)(2). Thus, as Capers’ petition was untimely and did not fall

within one of the exceptions set forth in R.C. 2953.23(A)(1) or (A)(2), the trial court properly

concluded that it did not have authority to entertain the petition.

       {¶9}    It follows that Capers’ first and second assignments of error are overruled.

                                                 III.

       {¶10} Capers’ assignments of error are overruled. The judgment of the Summit County

Court of Common pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 6


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

Pleas, County of Lorain, 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



WHITMORE, P. J.
BELFANCE, J.
CONCUR.


APPEARANCES:

LAMAR M. CAPERS, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.
