[Cite as State v. Garcia, 2013-Ohio-3677.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-02-025

                                                   :           OPINION
    - vs -                                                      8/26/2013
                                                   :

DAVID A. GARCIA,                                   :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                           Case No. CR07-06-0912



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

David A. Garcia, #A568-239, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe,
Ohio 45601, defendant-appellant, pro se



        RINGLAND, J.

        {¶ 1} Defendant-appellant, David A. Garcia, appeals the decision of the Butler

County Court of Common Pleas denying his successive petition for postconviction relief.

        {¶ 2} On December 13, 2007, Garcia was convicted of possession of marijuana, a

second-degree felony, and trafficking in marijuana, a first-degree felony.      Garcia was

sentenced to serve eight years in prison for the possession conviction, to be served
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concurrently with a ten-year prison sentence for the trafficking conviction. Garcia appealed

his convictions and sentence. This court overruled his assignments of error on June 8, 2009,

citing the appeals of Garcia's codefendants wherein the validity of the search warrant was

affirmed. However, the case was remanded to the trial court to merge the trafficking and

possession convictions as allied offenses. State v. Garcia, 12th Dist. Butler No. CA2008-01-

015 (June 8, 2009) (Accelerated Calendar Judgment Entry). Garcia was subsequently

resentenced on July 2, 2009.

       {¶ 3} While Garcia's direct appeal was pending, he filed a petition for postconviction

relief on May 14, 2008. The trial court denied Garcia's petition, and this court dismissed the

subsequent appeal because it was not filed in a timely manner. State v. Garcia, 12th Dist.

Butler No. CA2008-09-236 (Feb. 24, 2009) (Dismissal Entry).

       {¶ 4} On December 4, 2008, Garcia filed a successive petition for postconviction

relief. The trial court again denied Garcia's petition. On appeal, this court overruled Garcia's

assignment of error and affirmed the trial court's denial of the successive petition for

postconviction relief as untimely. State v. Garcia, 12th Dist. Butler No. CA2009-01-021 (Oct.

13, 2009) (Accelerated Calendar Judgment Entry).

       {¶ 5} While that appeal was pending, Garcia filed a writ of procedendo on March 13,

2009, demanding an order for the lower court to issue findings of fact and conclusions of law

with regard to his first petition for postconviction relief. This court dismissed the writ as moot

because the lower court had filed findings of fact and conclusions of law on April 14, 2009.

Garcia v. Butler Cty. Ct. of Common Pleas, 12th Dist. Butler No. CA2009-03-096 (May 12,

2009) (Dismissal Entry). Those findings of fact and conclusions of law stated that:

              The Petitioner could have raised all of the claims he presents in
              his post-conviction petition on direct appeal, and he has
              presented no material, relevant nor competent evidence outside
              the record, res judicata bars his claims. Whether it be a claim of
              ineffective assistance of counsel or the legality of the search,
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                 these issues could have been asserted in the proper court at the
                 appropriate time. A Motion to Suppress was heard in this matter
                 and was denied by the reviewing court.

          {¶ 6} Garcia then appealed the trial court's findings of fact and conclusions of law

denying his petition for postconviction relief. This court overruled his assignment of error,

holding that "his claim of ineffective assistance of counsel could have been raised upon

direct appeal, and therefore, is now barred by the doctrine of res judicata." State v. Garcia,

12th Dist. Butler No. CA2009-04-118 (Nov. 23, 2009) (Accelerated Calendar Judgment

Entry).

          {¶ 7} On December 20, 2012, Garcia filed a second successive petition for

postconviction relief. He argued that new evidence in the form of interrogatories received

from his federal civil case prove that his trial counsel failed to adequately attack the validity of

the search warrant in the motion to suppress hearing. The trial court denied Garcia's petition,

finding that "[a] review of the record and R.C. 2953.21(A)(2) indicated that [Garcia's] Petition

is untimely. Additionally, [Garcia] has failed to establish that an exception listed in R.C.

2953.23(A) grants this Court jurisdiction to consider his untimely Petition."

          {¶ 8} Garcia now appeals from that decision, raising a single assignment of error for

our review:

          {¶ 9} Assignment of Error No. 1:

          {¶ 10} TRIAL COUNSEL VIOLATED [GARCIA'S] 6TH AMENDMENT RIGHT TO

EFFECTIVE ASSISTANCE BY FAILING TO COMPLETELY LITIGATE [GARCIA'S] 4TH

AMENDMENT CLAIM.

          {¶ 11} Within his first assignment of error, Garcia challenges the finding that his

petition was untimely and that no exception listed in R.C. 2953.23(A) granted the trial court

jurisdiction to consider the petition.

          {¶ 12} Pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief "shall be filed
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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 or adjudication * * *." If a

postconviction relief petition is filed beyond the 180-day time limitation, or the petition is a

second or successive petition for postconviction relief, a trial court lacks jurisdiction to

consider it unless the provisions of R.C. 2953.23(A) apply. State v. Bryant, 7th Dist.

Mahoning App. No. 10-MA-11, 2010-Ohio-4401, ¶ 15. R.C. 2953.23(A)(1) provides that a

trial court may entertain a petition filed after the expiration of the 180-day time period if a

petitioner establishes both of the following requirements:

              (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 described 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 fact-finder 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 fact-finder would have found the petitioner eligible
              for the death sentence.

       {¶ 13} Garcia does not dispute that his second petition was filed outside the 180-day

statutory period.    However, he claims that he established the requirements of R.C.

2953.23(A)(1) for the trial court's consideration of an untimely petition.

       {¶ 14} Garcia asserts that his ineffective assistance of counsel claim is based upon

new evidence contained in the interrogatories of Officer Joseph Nerlinger. However, after a

thorough review of the record, we cannot find that any evidence contained in Officer

Nerlinger's more recent interrogatories presents new evidence. In fact, Garcia already made

these same arguments in relation to Officer Nerlinger and the validity of the search warrant in


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his August 25, 2009 motion for a new trial. In that motion, Garcia argued that Officer

Nerlinger "failed to demonstrate the C.I. was reliable, the Officer did not corroborate his

information before seeking a search warrant, and the Officer's affidavit presents new

evidence of these claims. * * * The Officer did not corroborate those facts necessary to the

investigation that would provide a basis of knowledge for him to receive a valid search

warrant." These are the same arguments that Garcia makes in the present appeal, with no

new evidence in support of those claims.

       {¶ 15} In light of the foregoing, having found that Garcia has not presented any new

evidence that would allow the trial court to entertain his untimely petition for postconviction

relief, Garcia's sole assignment of error is overruled.

       {¶ 16} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




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