[Cite as State v. Shank, 2019-Ohio-3418.]


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

STATE OF OHIO                                         C.A. No.       18CA0107-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
PATRICK J. SHANK                                      COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   12CR0696

                                 DECISION AND JOURNAL ENTRY

Dated: August 26, 2019



        CARR, Judge.

        {¶1}     Defendant-Appellant Patrick Shank appeals the judgment of the Medina County

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

                                                 I.

        {¶2}     In 2012, Shank was indicted on ten counts of rape in violation of R.C.

2907.02(A)(2), and two counts of rape in violation of R.C. 2907.02(A)(1)(c). At the time of the

crimes, the victim was a minor who lived across the street from Shank and who used to babysit

his children. See State v. Shank, 9th Dist. Medina No. 14CA0090-M, 2016-Ohio-7819, ¶ 8-13.

Shank pleaded not guilty, waived his right to a jury trial, and the matter proceeded to a bench

trial. The trial court found Shank guilty of rape as contained in counts one, two, and eight of the

indictment, and guilty of the lesser included offense of sexual battery with respect to counts three

through seven and nine through twelve of the indictment. The trial court sentenced Shank to an
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aggregate of nine years of incarceration to be served consecutively to a sentence imposed in a

prior, separate case.

       {¶3}    Shank timely appealed his convictions, raising five assignments of error. See id.

at ¶ 3. The transcripts of proceedings were filed April 9, 2015. This Court affirmed the

judgment of the trial court. See id. at ¶ 1.

       {¶4}    In July 2018, Shank filed a petition for post-conviction relief. The State opposed

the petition and asserted it should be dismissed. Ultimately, the trial court dismissed the petition.

In so doing, the trial court concluded the petition was untimely and the requirements of R.C.

2953.23(A)(1)(a)-(b) were not met.

                                                  II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE
       PETITION SO AS TO DEPRIVE PETITIONER OF HIS RIGHT TO DUE
       PROCESS AND RIGHT TO A FAIR TRIAL IN VIOLATION OF THE [SIXTH]
       AND [FOURTEENTH] AMENDMENTS [TO] THE UNITED STATES
       CONSTITUTION, AND ARTICLE [I] SECTION 5 OF THE OHIO
       CONSTITUTION[.]

       {¶5}    Shank argues in his sole assignment of error that the trial court abused its

discretion in dismissing his petition for post-conviction relief.

       {¶6}    Neither side disputes that Shank’s petition was untimely filed under R.C.

2953.21(A)(2). Instead, the dispute centers on whether Shank satisfied the requirements of R.C.

2953.23(A)(1), particularly, the first portion of R.C. 2953.23(A)(1)(a); Shank never asserted that

he met the requirements of R.C. 2953.23(A)(2).

       {¶7}    “[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial court of

jurisdiction to adjudicate the merits of an untimely or successive postconviction petition.” State

v. Apanovtich, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36. “[T]he question [of] whether a court
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of common pleas possesses subject-matter jurisdiction to entertain an untimely petition for

postconviction relief is a question of law, which appellate courts review de novo.” Id. at ¶ 24.

       {¶8}    R.C. 2953.23(A)(1) 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.

See also State v. Archey, 9th Dist. Summit No. 29254, 2019-Ohio-2303, ¶ 6.

       {¶9}    “[T]he post-conviction relief statute requires a defendant to have been

unavoidably prevented from discovering facts that may create a claim for relief. It does not

afford a defendant a second chance to advance a legal argument that could have been raised upon

the original trial record.” (Internal citation omitted. Emphasis sic.) State v. Wharton, 9th Dist.

Summit No. 27656, 2015-Ohio-4566, ¶ 12. Thus, “[a]wareness of the facts upon which a

claimed deprivation of a right is based is the key to whether a petitioner meets the exception

contained in R.C. 2953.23(A)(1). “It is the awareness of the facts, not necessarily awareness of
                                                 4


the legal significance thereof, that matters.” State v. Meyers, 9th Dist. Franklin No. 05AP-228,

2005-Ohio-5998, ¶ 33.

       {¶10} Despite Shank’s more extensive argument on appeal, his argument in his petition

was much more limited. We will limit our discussion accordingly. Below, he asserted that the

basis of his petition was that “[a]ppellate counsel failed to file any post conviction motions for

relief, despite the glaring error of trial counsel in not presenting evidence of Shank[’s] alibi,

which clearly demonstrated Shank was working at the time of the alleged rape dated June 11,

2003.” Shank further asserted that he “was unaware that this was the proper route until after the

expiration [of the time limit in the statute.]” He maintained that “it was not until recently that

[Shank] was able to obtain the necessary supportive documents for the instant motion.”

However, the barriers to Shank obtaining those documents were not detailed in the

accompanying affidavits.

       {¶11} In support of his motion, he submitted affidavits and supporting documentation

from three individuals: his work supervisor, a friend who was involved in his post-conviction

legal matters, and himself. While the supporting affidavits also pointed to alleged omissions

from the trial transcript, there was no argument in the petition asserting that the omissions

formed a basis to support the requirements of R.C. 2953.23(A)(1). Accordingly, that issue will

not be further considered in this appeal.

       {¶12} Shank failed to establish that he satisfied the requirements in R.C. 2953.23(A)(1).

First, with respect to Shank’s assertion that it was the ineffectiveness of Shank’s appellate/post-

conviction-relief counsel in failing to file a motion for post-conviction relief that resulted in his

petition being untimely, “[w]e reject this argument outright, as there is no constitutional right to

the effective assistance of post-conviction counsel.” State v. Wesson, 9th Dist. Summit No.
                                                 5


28412, 2018-Ohio-834, ¶ 10. Moreover, Shank has not demonstrated that he was unavoidably

prevented from discovering the facts upon which he sought to rely prior to the expiration of the

time period in the statute. See R.C. 2953.23(A)(1)(a); State v. Rogers, 9th Dist. Summit No.

19885, 2000 WL 1072375, *2 (Aug. 2, 2000). Shank’s own affidavit in support of his petition

states that his post-conviction relief counsel “did not file any motions for post conviction relief,

which would have included the issue of trial counsel’s failure to introduce alibi evidence through

his [supervisor.]” Thus, Shank’s affidavit essentially acknowledges the facts he sought to rely on

were available prior to the statutory deadline. In addition, the trial court record includes a notice

of alibi pursuant to Crim.R. 12.1, a subpoena issued for the custodian of the records of Shank’s

place of employment to bring “[a]ny and all books, records, logs, wage reports, schedules,

employee lists, financial documents, and other documents that confirm or dispute whether

Patrick J. Shank * * * worked * * * during the following time periods: 6/1/03-6/30/03 and

4/1/04-9/1/04[,]” and a subpoena issued to Shank’s supervisor.              Thus, Shank has not

demonstrated that the facts related to his alibi were not available prior to the expiration of the

statutory deadline.

       {¶13} While Shank referenced State v. Martin, 2d Dist. Montgomery No. 20024, 2004-

Ohio-73, in a footnote in his petition in support of his argument, even assuming we agreed with

Martin, we conclude Shank’s situation is not comparable to the situation in Martin.

       {¶14} Martin’s post-conviction claim was that

       his trial counsel unreasonably failed to call alibi witnesses who would have
       testified that he was with them when the crimes were committed. Although
       Martin obviously knew of the alibi and the identi[t]y of the individuals who
       would have supported it, he nevertheless argue[d] that he could not have raised
       the issue in a timely post-conviction petition. According to Martin, he was
       unavoidably prevented from discovering the facts upon which this claim
       depend[ed] because he lost contact with the alibi witnesses immediately after his
       conviction. Martin insist[ed] that he diligently tried to locate the witnesses but
                                                  6


        could not do so. He contend[ed] they eventually contacted him in prison,
        providing affidavits to substantiate his claim, and he filed his petition promptly
        thereafter. Finally, Martin insist[ed] that his own affidavit (which include[d] the
        foregoing factual allegations) and the affidavits of the alibi witnesses constitute[d]
        clear and convincing evidence that the jury would not have convicted him but for
        his attorney’s failure to call the witnesses at trial. As a result, Martin assert[ed]
        that he ha[d] satisfied both of the requirements set forth in R.C. § 2953.23(A).

Id. at ¶ 10.

        {¶15} The Second District agreed with Martin’s arguments. It concluded that “Martin

was unavoidably prevented from discovering the facts upon which his claim relie[d], within the

meaning of R.C. []2953.23(A)(1)(a), until he obtained affidavits from his alibi witnesses.

Although Martin personally knew of the alleged ineffective assistance of counsel, he could not

have established substantive grounds for relief without the affidavits. In addition, the affidavits

attached to Martin’s post-conviction relief petition establish[ed] (and the State [did] not

dispute[]) that he could not have obtained the affidavits from the alibi witnesses sooner.” Id. at ¶

16.

        {¶16} Here, none of the averments in the affidavits accompanying Shank’s petition

assert that Shank lost touch with his alibi witnesses or was otherwise prevented from contacting

them. Thus, we conclude that Martin is inapplicable to the facts before us.

        {¶17} Shank has not demonstrated that the trial court erred in dismissing his petition as

untimely as he failed to demonstrate he met the requirements of R.C. 2953.23(A)(1). Shank’s

assignment of error is overruled.

                                                 III.

        {¶18} Shank’s assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.
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       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 Medina, 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



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

RONALD STANLEY, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
