[Cite as State v. Jackson, 2019-Ohio-1153.]


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

STATE OF OHIO                                          C.A. No.       18CA011363

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DARRELL L. JACKSON, JR.                                COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   14CR090543

                                 DECISION AND JOURNAL ENTRY

Dated: March 29, 2019



        TEODOSIO, Presiding Judge.

        {¶1}     Appellant, Darrell L. Jackson, appeals from the trial court’s denial of his petition

to vacate or set aside judgment of conviction or sentence in the Lorain County Court of Common

Pleas. This Court affirms.

                                                  I.

        {¶2}     This Court previously set forth the procedural history of this case as follows:

        Following an investigation into drug trafficking, the Lorain Police Department
        executed a search warrant at Jackson’s home. During the search, officers
        discovered a firearm, multiple cell phones, United States currency, a scale, a
        hydraulic press, Pyrex jars with residue, a grinder with residue, crack cocaine, and
        a large amount of white powder in different baggies, some of which field tested
        positive for cocaine. Consequently, Jackson was indicted by the Lorain County
        Grand Jury and charged with several counts of trafficking and possession of
        cocaine with specifications, tampering with evidence, having weapons while
        under disability, possession of criminal of tools, and drug paraphernalia. At
        arraignment, Jackson pleaded not guilty to the charges.

        ***
                                                 2


       Subsequently, Jackson pleaded guilty to several counts in the indictment, waived
       his right to a jury trial, and proceeded to a bench trial on counts three and four of
       the indictment. Count Three charged Jackson with trafficking in cocaine in
       violation of R.C. 2925.03(A)(2), a felony of the first degree. The offense carried
       a major drug offender specification and a forfeiture of property specification
       ($2,978.00 in cash). Count Four charged Jackson with possession of cocaine in
       violation of R.C. 2925.11(A), a felony of the first degree. The offense carried a
       major drug offender specification. At the conclusion of the State’s case-in-chief,
       Jackson raised a Crim.R. 29 motion for judgment of acquittal, arguing that R.C.
       2925.03(C)(4) and R.C. 2925.11(C)(4) required the State to prove the weight of
       the pure cocaine involved in order to convict him of anything above a fifth degree
       felony. The trial court summarily denied the motion. The defense then rested and
       renewed its Crim.R. 29 motion. The trial court subsequently found Jackson guilty
       of both counts and sentenced him on all counts in the indictment to an aggregate
       term of eleven years in prison.

State v. Jackson, 9th Dist. Lorain No. 15CA010828, 2016-Ohio-7637, ¶ 2-4.

       {¶3}    Mr. Jackson’s convictions were affirmed on appeal. See id. at ¶ 21. He then filed

a petition to vacate or set aside judgment of conviction or sentence in the trial court. The court

construed Mr. Jackson’s petition as a petition for post-conviction relief and denied it as untimely.

       {¶4}    Mr. Jackson now appeals from the trial court’s denial of his petition and raises

two assignments of error for this Court’s review.

       {¶5}    For ease of analysis, we will consolidate Mr. Jackson’s assignments of error.

                                                II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
       APPELLANT’S POST-CONVICTION PETITION IN VIOLATION OF THE
       FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION.

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S POST-
       CONVICTION RELIEF PETITION WHERE HE PRESENTED SUFFICIENT
       EVIDENCE DEHORS THE RECORD TO MERIT AN EVIDENTIARY
       HEARING.
                                                 3


       {¶6}    In his assignments of error, Mr. Jackson argues that the trial court erred and

abused its discretion in denying his petition for post-conviction relief. We disagree.

       {¶7}    R.C. 2953.21(A)(1)(a) permits anyone convicted of a criminal offense “who

claims that there was such a denial or infringement of the person’s rights as to render the

judgment void or voidable under the Ohio Constitution or the Constitution of the United States”

to “file a petition in the court that imposed sentence, stating the grounds for relief relied upon,

and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate

relief.” Generally, “[w]e review a trial court’s decision denying a petition for post-conviction

relief under an abuse of discretion standard.” State v. Daniel, 9th Dist. Summit No. 26670,

2013-Ohio-3510, ¶ 7. Our standard of review is de novo, however, when the trial court denies a

petition solely on the basis of an issue of law. State v. Childs, 9th Dist. Summit No. 25448,

2011-Ohio-913, ¶ 9.      “Whether a defendant’s post-conviction relief petition satisfied the

procedural requirements set forth in R.C. 2953.21 and R.C. 2953.23 is an issue of law.” Id.

Here, the trial court determined Mr. Jackson’s petition was untimely under R.C. 2953.21(A)(2).

The court further stated because the exceptions under R.C. 2953.23(A)(1) and (2) did not apply,

it was unable to entertain the untimely petition. Consequently, we will apply a de novo standard

of review. See Childs at ¶ 9.

       {¶8}    Because Mr. Jackson filed a direct appeal of his convictions, and his case did not

involve a sentence of death, he was required to file his petition “no later than three hundred

sixty-five 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). The

trial transcript was filed in this Court in Mr. Jackson’s direct appeal on January 8, 2016.
                                                 4


However, Mr. Jackson did not file his petition in the trial court until June 11, 2018, well beyond

the statutory deadline. His petition was therefore untimely.

       {¶9}    A trial court may not entertain untimely petitions unless the petitioner satisfies

certain requirements. First, he must show that he was unavoidably prevented from discovering

the facts he relies on or that, subsequent to the 365-day deadline, the United States Supreme

Court recognized a new federal or state right that applies retroactively to persons in his situation,

and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a). Second, he must

show “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 he was convicted * *

*.” R.C. 2953.23(A)(1)(b).

       {¶10} In his petition, Mr. Jackson conceded that his petition was untimely. He argued

that he was unable to locate and obtain necessary affidavits from witnesses, claiming to have

therefore satisfied the requirements of R.C. 2953.23(A)(1)(a). He attached three affidavits,

including his own and two from family members. He also attached an uncertified transcript of a

purported telephone conversation between Mr. Jackson and trial counsel. None of these items

contain facts that he was unavoidably prevented from discovering prior to the statutory deadline.

Even assuming arguendo that Mr. Jackson satisfied the R.C. 2953.23(A)(1)(a) requirement, he

neglected to further show how he satisfied the requirement of R.C. 2953.23(A)(1)(b). Because

Mr. Jackson failed to satisfy his burden under R.C. 2953.23(A)(1)(a) and (b), we agree with the

trial court’s determination that it lacked authority to entertain the untimely petition. The trial

court therefore did not err in denying Mr. Jackson’s petition for post-conviction relief.

       {¶11} Mr. Jackson’s first and second assignments of error are overruled.
                                                 5


                                                III.

       {¶12} Mr. Jackson’s first and second assignments of error are overruled. The judgment

of the Lorain County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       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.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT




HENSAL, J.
SCHAFER, J.
CONCUR.
                                         6


APPEARANCES:

DARRELL L. JACKSON, SR., pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
