[Cite as State v. Higgins, 2017-Ohio-909.]


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

STATE OF OHIO                                          C.A. No.      28215

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
THOMAS D. C. HIGGINS                                   COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 11 02 0487

                                  DECISION AND JOURNAL ENTRY

Dated: March 15, 2017



        HENSAL, Presiding Judge.

        {¶1}     Thomas Higgins appeals a judgment of the Summit County Court of Common

Pleas that denied his petition to vacate or set aside judgment of conviction or sentence. For the

following reasons, this Court affirms.

                                                  I.

        {¶2}     In 2011, a jury found Mr. Higgins guilty of felonious assault and a related firearm

specification. The trial court sentenced him to a total of eight years imprisonment. This Court

affirmed his conviction and sentence on appeal. State v. Higgins, 9th Dist. Summit No. 26120,

2012-Ohio-5650.

        {¶3}     On February 22, 2016, Mr. Higgins filed a petition to vacate or set aside judgment

of conviction or sentence. The State opposed his petition, arguing that it was untimely under

Revised Code Section 2953.23. Upon review, the trial court concluded that the petition was
                                                  2


untimely. It, therefore, denied Mr. Higgins relief. Mr. Higgins has appealed, assigning two

errors that this Court will address together for ease of consideration.

                                                 II.

                                   ASSIGNMENT OF ERROR I

       THE DEFENDANT WAS NOT AFFORDED A FAIR TRIAL AND THE
       RIGHT TO EFFECTIVE ASSISTANCE OF COUNCIL (SIC) GUARANTEED
       BY THE SIXTH AMENDMENT.

                                  ASSIGNMENT OF ERROR II

       THE DEFENDANT WAS NOT AFFORDED DUE PROCESS OF THE LAW
       GUARANTEED BY THE FOURTEENTH AMENDMENT.

       {¶4}    Mr. Higgins argues that he was not afforded a fair trial or the right to effective

counsel. Specifically, he argues that his counsel should have sought more discovery and filed

pre-trial motions. He also argues that he was not allowed to inspect or examine any of the

evidence that the State intended to use against him at trial. He further argues that the trial court

should have accepted his untimely petition.

       {¶5}    Under Revised Code Section 2953.21(A)(2), a petition for post-conviction relief

must be filed no later than 365 days after the day the trial transcript is filed in the direct appeal

from the judgment of conviction and sentence, or, if no direct appeal is taken, 365 days after the

expiration of the time to file an appeal. The trial court is not permitted to consider petitions filed

outside of this period unless the petitioner was unavoidably prevented from discovering the facts

on which he relies or, subsequent to the expiration of the deadline, the United States Supreme

Court recognizes a new federal or state right that applies retroactivity to people in the petitioner’s

situation and the petition asserts a claim based on the new right. R.C. 2953.23(A)(1)(a). The

petitioner must also show “by clear and convincing evidence that, but for constitutional error at
                                                  3


trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was

convicted * * *.” R.C. 2953.23(A)(1)(b).

       {¶6}    In his petition, Mr. Higgins did not allege that there is a new federal or state right

that applies to his situation. He also did not allege that he was unavoidably prevented from

discovering the facts upon which he relies in support of his petition. Although he makes a

blanket assertion that none of his arguments were apparent at the time of trial, it is insufficient to

demonstrate that he was unavoidably prevented from discovering the facts that support his

petition. State v. Phillips, 9th Dist. Summit No. 27733, 2016-Ohio-1198, ¶ 20, citing State v.

Jalowiec, 9th Dist. Lorain No. 02CA008130, 2003-Ohio-3152, ¶ 8.

       {¶7}    Upon review of the record, we conclude that Mr. Higgins did not file his petition

for post-conviction relief within the time required by Section 2953.21(A)(2). He also failed to

establish grounds for filing an untimely petition under Section 2953.23(A). The trial court,

therefore, correctly determined that it lacked authority to consider his petition. Mr. Higgins’s

assignments of error are overruled.

                                                 III.

       {¶8}    Mr. Higgins’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 4


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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



CARR, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

THOMAS D. C. HIGGINS, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
