[Cite as State v. West, 2013-Ohio-826.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98680



                                          STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      TIMOTHY WEST
                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548609


        BEFORE:           Celebrezze, J., Boyle, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      March 7, 2013
FOR APPELLANT

Timothy West, pro se
Inmate No. 604-876
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.

       {¶2} Defendant-appellant, Timothy West, appeals the judgment of the common

pleas court that denied his petition for postconviction relief. After careful review of the

record and relevant case law, we affirm the judgment of the trial court.

       {¶3} On March 29, 2011, appellant was indicted by the Cuyahoga County Grand

Jury for illegal manufacture of drugs or cultivation of marijuana, in violation of R.C.

2925.04(A); drug trafficking, in violation of R.C. 2925.03(A)(2); drug possession, in

violation of R.C. 2925.11(A); and possession of criminal tools, in violation of R.C.

2923.24(A). Each count contained multiple forfeiture specifications.

       {¶4} On April 5, 2011, appellant was arraigned and pled not guilty to the charges

and was assigned counsel. A jury trial commenced on September 13, 2011. At the

conclusion of trial, appellant was found guilty as charged on September 16, 2011. The

trial court subsequently sentenced appellant to 16 years in prison.

       {¶5} On November 7, 2011, appellant brought a direct appeal of his convictions to

this court, wherein he asserted seven assignments of error. State v. West, 8th Dist. Nos.

97391 and 97900, 2013-Ohio-96.         While his appeal was pending, appellant filed a

petition for postconviction relief on May 3, 2012, pursuant to R.C. 2953.21, in concert
with a motion to stay the petition for 60 days so that he could obtain evidence to support

his claims. On June 19, 2012, the state filed a motion in opposition to appellant’s

petition. On June 28, 2012, the trial court denied appellant’s petition without a hearing

and issued findings of fact and conclusions of law.

       {¶6} Appellant now brings this timely appeal pro se, raising one assignment of

error for review.

                                     Law and Analysis

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

denying his petition for postconviction relief.

       {¶8} Petitions for postconviction relief are governed by the standards set forth in

R.C. 2953.21, which provides, in pertinent part:

       (A)(1)(a) Any person who has been convicted of a criminal offense * * *
       and 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 * * * may 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. The petitioner may file a
       supporting affidavit and other documentary evidence in support of the claim
       for relief.

       ***

       (C) The court shall consider a petition that is timely filed under division
       (A)(2) of this section even if a direct appeal of the judgment is pending.
       Before granting a hearing on a petition filed under division (A) of this
       section, the court shall determine whether there are substantive grounds for
       relief. In making such a determination, the court shall consider, in addition
       to the petition, the supporting affidavits, and the documentary evidence, all
       the files and records pertaining to the proceedings against the petitioner,
       including, but not limited to, the indictment, the court’s journal entries, the
       journalized records of the clerk of the court, and the court reporter’s
       transcript.

       {¶9} A postconviction proceeding is not an appeal of a criminal conviction, but

rather a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 410,

1994-Ohio-111, 639 N.E.2d 67.          In postconviction cases, a trial court acts as a

gatekeeper, determining whether a defendant will even receive a hearing.            State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77. In State v. Calhoun, 86

Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905, the Ohio Supreme Court held that the

trial court’s gatekeeping function in the postconviction relief process is entitled to

deference, including the court’s decision regarding the sufficiency of the facts set forth by

the petitioner and the credibility of the affidavits submitted. Accordingly, we review

appellant’s postconviction claims brought pursuant to R.C. 2953.21 under an abuse of

discretion standard.    Id.   An abuse of discretion implies that a court’s ruling is

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶10} R.C. 2953.21(A) requires a petitioner for postconviction relief to allege a

“denial or infringement” of his rights under the Ohio or United States Constitutions. In

the case sub judice, appellant asserted that he was denied effective assistance of counsel

as required by the Sixth Amendment to the United States Constitution because his trial

counsel did not fully investigate the matter.

       {¶11} When a petitioner asserts in his petition for postconviction relief that his

trial counsel was ineffective, he must submit evidentiary documents that contain
sufficiently operative facts to support this assertion and that demonstrate that his defense

was prejudiced by counsel’s ineffectiveness. State v. Jackson, 64 Ohio St.2d 107, 413

N.E.2d 819 (1980), syllabus. If a petitioner fails to meet this burden, the trial court may

dismiss the petition for postconviction relief without a hearing. Id.

       {¶12} In challenging the trial court’s denial of his petition, appellant does not

address the substantive merits of his ineffective assistance of counsel claim. Rather,

appellant contends that the trial court abused its discretion when it denied his motion to

stay his petition for 60 days so that he could obtain cognizable evidence to support his

grounds for relief.

       {¶13} We find no merit to appellant’s argument. R.C. 2953.21(A)(2) provides

that petitions for postconviction relief “shall be filed no later than one hundred eighty

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.” Here, the record reflects that appellant filed his

petition approximately three days before the 180-day window expired. While timely,

appellant’s petition did not contain any evidence to support his ineffective assistance

claim. Under these circumstances, the trial court had no obligation to grant appellant’s

motion to stay so that appellant could have additional time to acquire cognizable evidence

to support his petition and simultaneously avoid the pitfalls of filing an untimely petition.

 Appellant had ample time to obtain evidence to support his position prior to the

expiration of the statutory constraints of R.C. 2953.21(A)(2), and the trial court was free

to deny appellant’s motion to stay.
       {¶14} Next, appellant contends that the trial court abused its discretion when it

entertained the state’s untimely response brief, in violation of R.C. 2953.21(D). Pursuant

to R.C. 2953.21(D), if the state responds to a petition for postconviction relief, it must do

so within ten days after the petition is filed or obtain leave of court to respond after that

time. State v. Slagter, 8th Dist. No. 78658, 2001 Ohio App. LEXIS 4656, *17 (Oct. 18,

2001), citing State v. Wiles, 126 Ohio App.3d 71, 77, 709 N.E.2d 898 (11th Dist.1998).1

       {¶15} Here, the state concedes that it filed its brief in opposition to appellant’s

petition on June 19, 2012, well after the ten-day response time. Further, the state

acknowledges that it did not obtain a leave of court to file its response out of rule.

Accordingly, the state’s brief in opposition was untimely, and the trial court erred in

considering it. Slagter at * 19.

       {¶16} Nevertheless, we find the trial court’s error to be harmless.2 As stated, a

petitioner for postconviction relief must provide evidence of sufficient operative facts to

demonstrate a cognizable claim of a constitutional error. State v. Kapper, 5 Ohio St.3d

36, 37-38, 448 N.E.2d 823 (1983).          In the instant case, appellant’s petition amounted to

nothing more than broad and unsupported accusations of ineffective assistance of

counsel. Because appellant failed to proffer any evidence to support the constitutional


          In Slagter, this court recognized the departure from our previous holding in State v. Bonnell,
       1


8th Dist. Nos. 69835 and 73177, 1998 Ohio App. LEXIS 3943 (Aug. 27, 1998), which held that the
time period to respond to a petition for postconviction relief set forth in R.C. 2953.21(D) is directory
and not mandatory.

          Crim.R. 52(A) defines harmless error as “any error, defect, irregularity, or variance which
       2


does not affect substantial rights [and] shall be disregarded.”
claims raised in his petition, the trial court properly dismissed the petition without a

hearing, irrespective of the arguments raised by the state in its response brief.   See State

v. Stedman, 8th Dist. No. 83531, 2004-Ohio-3298, ¶ 15.

       {¶17} Based on the foregoing, appellant’s sole assignment of error is overruled.

       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
