[Cite as State v. Davenport, 2015-Ohio-5120.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                    No. 15AP-96
v.                                                :             (C.P.C. No. 10CR-2709)

Carlos Davenport,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                            D E C I S I O N

                                   Rendered on December 10, 2015



                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellee.

                 Carlos Davenport, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.

        {¶ 1} Defendant-appellant, Carlos Davenport, appeals from a decision of the
Franklin County Court of Common Pleas, rendered on January 15, 2015, which denied his
petition for postconviction relief as untimely. On review, we also find his petition to be
untimely, and we affirm the trial court's denial of postconviction relief.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On November 10, 2011, a jury found Davenport guilty of two counts of rape
by force or threat of force of a minor less than 13 years of age and one count of
kidnapping. By entry filed on November 30, 2011, the trial court merged the kidnapping
count with the rape counts and sentenced Davenport to 25 years to life in prison on each
of the rape counts, to be served consecutively to one another for a total term of
imprisonment of 50 years to life.
No. 15AP-96                                                                                            2

        {¶ 3} On December 30, 2011, Davenport filed a notice of appeal.1 Our docket
reflects that the record for the appeal was filed by the deputy clerk with this court on
February 9, 2012, and a supplemental record including transcripts followed on March 26,
2012. One hundred eighty-one days after the supplemental record was filed on appeal, on
September 24, 2012, Davenport filed a notice of ongoing investigation and diligence
announcing his intent to file a petition for postconviction relief and requesting a 60-day
extension of time in which to do so. The state responded that diligence and timeliness of a
petition is to be determined after the petition is filed, not in advance. The trial court made
no ruling on the notice and request.
        {¶ 4} Six hundred three days after the request for 60 days of additional time, on
May 20, 2014, Davenport filed a postconviction petition supported by several exhibits.
With it he filed motions for the appointment of counsel, an investigator, and numerous
experts.
        {¶ 5} On January 15, 2015, the trial court denied Davenport's petition because it
was not timely filed. Davenport now appeals.
II. ASSIGNMENTS OF ERROR
        {¶ 6} Davenport asserts four assignments of error:

                [I.] Appellant was denied Due Process Guaranteed by Fifth
                Amendment And made Applicable to the States by the
                Fourteeth Amendment when trial Court Committed
                Structural error and abuse of discretion (Egregiously so.) by
                denying Appellants Timely Filed Post Conviction motion
                basing its (The Courts.) erred decision upon it being
                Untimely.

                [II.] Trial Court Committed Structural error And violated
                Appellant's Right to Due Process Guaranteed by the Fifth
                Amendment to the Federal Constitution and Applicable to the
                States by the Fourteeth Amendment when the trial Court
                knowingly entered and participated in a Conspiracy against
                Appellants Civil Rights by Allowing an Unlicensed Court
                officer (Franklin County Bailiff Pat Griffin and defense/co-
                Counsel to forge, falsify records and Conceal other illegal Acts
                which Prohibit, delay, and infect Appellants Due Process and
                Equal Protection guaranteed him.

1Davenport's appeal was ultimately unsuccessful. State v. Davenport, 10th Dist. No. 11AP-1159, 2012-Ohio-
5192.
No. 15AP-96                                                                                        3

                   [III.] Appellant was denied effective assistance of Counsel
                   Guaranteed him through the 6th Amendment when
                   Appellants Counsel participated with State and County
                   officials in UN-lawful, fraudelent Acts which would hinder,
                   prohibit due Process

                   [IV.] Appellant was denied effective Assistance of Counsel
                   guaranteed him through the 6th and was denied Due Process
                   guaranteed By the Fifth Amendent to the Federal Constitution
                   and made Applicable to the states By the Fourteeth
                   Amendment when State (Prosecutor.) withheld exculpatory
                   evidence to wit a Police report which Contradicts States Key
                   Witness(es)2

(Sic passim.)
III. DISCUSSION
      A. First Assignment of Error – Whether Davenport's Petition for
         Postconviction Relief was Timely

           {¶ 7} A postconviction petition "shall be filed no later than one hundred eighty
days3 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). In this
case, the full record was filed in the court of appeals in Davenport's direct appeal of his
criminal case on March 26, 2012. One hundred eighty (180) days after that fell on
Sunday, September 23, 2012. Because of the operation of Civ.R. 6(A), the next court day
after the Sunday deadline became the deadline to file a timely postconviction petition in
this case. However, on September 24, 2012, instead of a petition, Davenport filed a notice
of ongoing investigation and diligence, announcing his intent to file a petition for
postconviction relief and requesting a 60-day extension of time in which to do so.
           {¶ 8} A petition for postconviction relief may be filed after the expiration of the
time limit if:
                   (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
2   The assignments of error are reproduced as they appear in the brief.

3   Effective March 23, 2015, this time limit was changed to 365 days. 2014 Am.Sub.H.B. No. 663.
No. 15AP-96                                                                                4

              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 * * *.

R.C. 2953.23(A).

       {¶ 9} Davenport does not attempt to argue that he satisfied either of the two
conditions contained in R.C. 2953.23(A)(1)(a) and (b). Instead he argues that the notice
of diligence and request for an extension of time that he filed on September 24, 2012,
tolled the deadline to file his postconviction petition. Therefore, according to Davenport,
when he filed his petition 603 days later, it was timely, and there was no need to invoke
R.C. 2953.23(A)(1)(a) and (b).
       {¶ 10} In arguing that his notice of diligence and request for an additional 60 days
tolled the deadline for filing a postconviction petition, Davenport misapprehends the
nature of the deadline imposed by R.C. 2953.21(A)(2).            Many deadlines in court
proceedings set by court orders or by the criminal or civil rules can be extended by the
trial court in the proper exercise of its discretion. For example, Civ.R. 6(B) provides:
              When by these rules [of civil procedure] or by a notice given
              thereunder or by order of court an act is required or allowed
              to be done at or within a specified time, the court for cause
              shown may at any time in its discretion (1) with or without
              motion or notice order the period enlarged if request therefor
              is made before the expiration of the period originally
              prescribed or as extended by a previous order, or (2) upon
              motion made after the expiration of the specified period
              permit the act to be done where the failure to act was the
              result of excusable neglect * * *.

See also Crim.R. 57(B) (prescribing reference to the rules of civil procedure to determine
procedures not specifically provided for in the criminal rules). However, the deadline set
by R.C. 2953.21(A)(2) for filing a postconviction petition is statutory and jurisdictional.
State v. Melhado, 10th Dist. No. 05AP-272, 2006-Ohio-641, ¶ 18 ("A trial court lacks
No. 15AP-96                                                                                                 5

jurisdiction to hear an untimely filed petition for post-conviction relief if the two
conditions of R.C. 2953.23(A)(1) are not satisfied."). R.C. 2953.23 specifically provides
that "a court may not entertain a petition filed after the expiration of the period
prescribed in [R.C. 2953.21(A)(2)] * * * unless division (A)(1) or (2) of this section
applies." The 180-day limit could not have been and was not extended by a mere request
in a motion or by the filing of a notice.4
          {¶ 11} In order for the trial court to have had jurisdiction to consider the merits of
Davenport's untimely postconviction petition, Davenport would have been required to
show that he satisfied the exceptions to the deadline set forth in R.C. 2953.23. He did not
do so and nor did he try.5 Thus the trial court lacked jurisdiction to hear the merits of his
petition, and it had no choice but to dismiss the petition as untimely.
          {¶ 12} Davenport's first assignment of error is overruled.
    B. Second, Third, and Fourth Assignments of Error are Moot
          {¶ 13} We have concluded that the trial court lacked jurisdiction to consider the
merits of Davenport's untimely petition for postconviction relief. Thus, assignments of
error addressed to the substantive merits of Davenport's petition are moot.
          {¶ 14} Davenport's second, third, and fourth assignments of error are moot.
IV. CONCLUSION
          {¶ 15} We overrule Davenport's first assignment of error and find Davenport's
remaining assignments of error moot. We affirm the judgment of the Franklin County
Court of Common Pleas dismissing Davenport's untimely petition for postconviction
relief.
                                                                                     Judgment affirmed.
                             BROWN, P.J., and HORTON, J., concur.




4We note that the notice of diligence was not, ab initio, a futile gesture on the part of Davenport's counsel
because it could have formed part of a record to help establish diligent investigation as part of showing that
Davenport was "unavoidably prevented from discovery of the facts upon which the petitioner must rely to
present the claim for relief." R.C. 2953.23(A)(1)(a).

5 We note that, even had Davenport's request for additional time been effective, he requested an additional

60 days, but he took an additional 603 days. The record is devoid of any attempt on his part to offer any
explanation for this lengthy delay.
