[Cite as State v. Lawless, 2018-Ohio-2995.]


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

STATE OF OHIO                                        C.A. No.      17AP0043

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RICHARD LAWLESS                                      COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   2015 CRC-I 000206

                                 DECISION AND JOURNAL ENTRY

Dated: July 30, 2018



        HENSAL, Judge.

        {¶1}     Richard Lawless appeals from the judgment of the Wayne County Court of

Common Pleas, denying his petition for post-conviction relief. This Court affirms.

                                                I.

        {¶2}     This Court previously set forth the factual background of this case in Mr.

Lawless’s direct appeal as follows:

        The two victims in this case, S.D. and R.K., are recovering heroin addicts. At the
        time of the events giving rise to Mr. Lawless’s convictions, S.D. and R.K. were
        both active users of heroin and Mr. Lawless was their supplier. Around that same
        time, Gary Hubbard, Jr., Director of the Medina County Drug Task Force, was the
        head of an organized crime investigation that was investigating Mr. Lawless’s
        drug dealing activities in Ashland, Medina, and Wayne Counties. Pursuant to that
        investigation, search warrants were executed at multiple properties. Mr. Lawless
        suspected that S.D. and R.K. had “snitched” on him.

        Mr. Lawless’s co-defendant, Michael Kouns, and S.D. lived at one of the
        properties that was searched. A couple of days after the searches, Mr. Kouns
        asked S.D. to go with him to a vacant unit in the building to talk “about
        everything that was going on.” Mr. Lawless was waiting in that unit and
        threatened S.D with a gun. Mr. Kouns then used S.D.’s phone to text R.K.,
                                                 2


       asking him to come over. When R.K. arrived, Mr. Lawless punched him and had
       Mr. Kouns bind him with duct tape. Mr. Lawless threatened R.K. with the gun
       and struck him multiple times with a bat.

       After Mr. Lawless ended his interrogation of S.D. and R.K., he threatened that he
       would kill them if they reported the incident to police. Initially, neither S.D. nor
       R.K. went to the police. But, about ten days after the incident, they did report it to
       law enforcement.

       Mr. Lawless was indicted for two counts of kidnapping, one count of felonious
       assault, and two counts of abduction. Mr. Lawless pleaded not guilty and the
       matter proceeded to a jury trial. The jury found him guilty on all counts. The trial
       court merged the abduction counts into the kidnapping counts and sentenced Mr.
       Lawless to total of seventeen years in prison.

State v. Lawless, 9th Dist. Wayne No. 16AP0025, 2018-Ohio-444, ¶ 2-5. This Court affirmed

Mr. Lawless’s convictions on direct appeal. Id. at ¶ 41.

       {¶3}    While his direct appeal remained pending, Mr. Lawless filed a petition for post-

conviction relief with the trial court, raising numerous issues.       The trial court denied Mr.

Lawless’s petition without holding an evidentiary hearing, and this appeal followed.            Mr.

Lawless now raises two assignments of error for our review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       THE STATE’S FAILURE TO PROVIDE DETAILS OF WITNESS’ [SIC]
       INCENTIVE TO TESTIFY VIOLATED BRADY V. MARYLAND, 373 U.S. 83
       (1963).

       {¶4}    In his first assignment of error, Mr. Lawless argues that the trial court erred by

denying his petition for post-conviction relief because the State failed to provide details

regarding deals offered to witnesses in return for their testimony, which violated Brady v.

Maryland, 373 U.S. 83 (1963). For the reasons discussed below, we decline to address the

merits of Mr. Lawless’s first assignment of error.
                                                  3


       {¶5}    Revised Code Section 2953.21(A)(2) provides that, “[e]xcept as otherwise

provided in [S]ection 2953.23 of the Revised Code, a petition [for post-conviction relief] shall be

filed 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 * * *.” Regarding

untimely petitions, Section 2953.23(A) provides that “a court may not entertain a petition filed

after the expiration of the period prescribed in [Section 2953.21(A)]” unless an exception under

Section 2953.23(A)(1) or 2953.23(A)(2) applies.

       {¶6}    Here, the record reflects that the trial transcripts were filed with this Court in Mr.

Lawless’s direct appeal on June 30, 2016. Mr. Lawless did not file his petition for post-

conviction relief until more than 365 days later on July 13, 2017. In his petition, Mr. Lawless

did not argue that an exception under Section 2953.23 applied. The trial court, therefore, did not

have jurisdiction to consider Mr. Lawless’s untimely petition. State v. O’Neal, 9th Dist. Medina

No. 08CA0028-M, 2008-Ohio-6572, ¶ 16. Accordingly, the trial court did not err by denying

Mr. Lawless’s untimely petition. State v. Herzberger, 9th Dist. Lorain No. 16CA010899, 2017-

Ohio-491, ¶ 9. Mr. Lawless’s first assignment of error is overruled.

                                   ASSIGNMENT OF ERROR II

       IF THE AFFIDAVITS PROVIDED IN A PETITIONER’S MOTION TO
       VACATE FILED PURSUANT TO R.C. []2953.21 ESTABLISH A
       MERITORIOUS ISSUE, THE TRIAL COURT MAY NOT DISMISS THE
       PETITION WITHOUT AN EVIDENTIARY HEARING.

       {¶7}    In his second assignment of error, Mr. Lawless argues that the trial court erred by

denying his petition for post-conviction relief without first holding an evidentiary hearing. In

light of this Court’s disposition of Mr. Lawless’s first assignment of error, we decline to address

his second assignment of error on the basis that it is now moot. App.R. 12(A)(1)(c).
                                                 4


                                                III.

       {¶8}    Richard Lawless’s assignments of error are overruled. The judgment of the

Wayne 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 Wayne, 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.



                                                       JENNIFER HENSAL
                                                       FOR THE COURT

SCHAFER, P. J.
CARR, J.
CONCUR.

APPEARANCES:

DAVID L. DOUGHTEN, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
