[Cite as State v. Lewis, 2012-Ohio-1030.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
RANDY LEWIS                                  :       Case No. 2011CA00254
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2001MI00212



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 12, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      RANDY LEWIS, PRO SE
Prosecuting Attorney                                 Inmate No. 501-380
                                                     Mansfield Correctional Institution
By: KATHLEEN O. TATARSKY                             P.O. Box 788
110 Central Plaza South                              Mansfield, OH 44901
Suite 510
Canton, OH 44702
Stark County, Case No. 2011CA00254                                                    2

Farmer, J.

      {¶1}   On December 21, 2005, the Stark County Grand Jury indicted appellant,

Randy Lewis, on one count of robbery in violation of R.C. 2911.02(A)(2) (Case No.

2005CR1899).     A jury found appellant guilty as charged.     By judgment entry filed

February 16, 2006, the trial court sentenced appellant to eight years in prison.

Following an appeal, this court affirmed appellant's conviction and sentence. State v.

Lewis, Stark App. No. 2006CA00065, 2006-Ohio-6015.

      {¶2}   On April 24, 2007, appellant filed a petition for postconviction relief

challenging the make-up of the jury (Case No. 2007MI00127). By judgment entry filed

November 16, 2007, the trial court dismissed the petition. This decision was affirmed

on appeal. State v. Lewis, Stark App. No. 2007CA00358, 2008-Ohio-3113.

      {¶3}   On August 15, 2011, appellant filed a petition for delayed postconviction

relief, challenging the direct indictment from 2005. By judgment entry filed October 19,

2011, the trial court dismissed the petition under the doctrine of res judicata and

timeliness under R.C. 2953.23(A)(1).

      {¶4}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                            I

      {¶5}   "TRIAL COURT ERRED IN DISMISSING THE DELAYED POST-

CONVICTION AS UNTIMELY."
Stark County, Case No. 2011CA00254                                                        3


                                               II

       {¶6}   "KNOWING WILLFULLY UNDER COLOR OF LAW MAKING FALSE

STATEMENTS DEPRIVED PETITIONER RANDY LEWIS OF DUE PROCESS OF THE

LAW 14TH AMENDMENT."

                                              I, II

       {¶7}   Appellant claims the trial court erred in dismissing his petition for delayed

postconviction relief. We disagree.

       {¶8}   R.C. 2953.21 governs petitions for postconviction relief. Subsection (A)(2)

states the following in pertinent part:

       {¶9}   "(2) Except as otherwise provided in section 2953.23 of the Revised Code,

a petition under division (A)(1) of this section 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 or adjudication or, if the direct appeal

involves a sentence of death, the date on which the trial transcript is filed in the

supreme court."

       {¶10} Appellant's trial transcript was filed in his direct appeal on May 18, 2006.

Clearly appellant's petition filed on August 15, 2011 is beyond the time requirements of

R.C. 2953.21(A)(2).

       {¶11} Pursuant to R.C. 2953.23(A)(1), a trial court may consider an untimely

petition for postconviction relief only if both of the following apply:

       {¶12} "(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
Stark County, Case No. 2011CA00254                                                         4


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.

       {¶13} "(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."

       {¶14} Appellant's petition for delayed postconviction relief is based on Ohio's

direct indictment procedures. His petition does not meet the narrow exceptions under

R.C. 2953.23(A). He did not claim he was unavoidably prevented from discovery of

facts, and he did not seek to take advantage of any new federal or state right

recognized by the United States Supreme Court.

       {¶15} Upon review, we find appellant's petition did not meet the requirements for

untimely filing under R.C. 2953.23(A)(1); therefore the trial court did not err in denying

the petition for delayed postconviction relief.

       {¶16} Assignments of Error I and II are denied.
Stark County, Case No. 2011CA00254                                          5


      {¶17} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                      _s/ Sheila G. Farmer____________



                                      s/ William B. Hoffman __________



                                      _s/ John W. Wise   ___________

                                              JUDGES




SGF/sg 229
                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
RANDY LEWIS                             :
                                        :
       Defendant-Appellant              :        CASE NO. 2011CA00254




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                        _s/ Sheila G. Farmer____________
s/ William B. Hoffman __________



_s/ John W. Wise   ___________

            JUDGES
