[Cite as State v. Ruark, 2015-Ohio-3206.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :               No. 15AP-142
                                                                (C.P.C. No. 08CR-5109)
v.                                                 :
                                                              (REGULAR CALENDAR)
Robert J. Ruark,                                   :

                 Defendant-Appellant.              :



                                            D E C I S I O N

                                     Rendered on August 11, 2015


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert,
                 appellee.

                 Robert J. Ruark, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Robert J. Ruark, pro se, appeals from a judgment of
the Franklin County Court of Common Pleas denying his motion for postconviction relief.
For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} In July 2008, Ruark was indicated on two counts of murder, two counts of
attempted murder, two counts of felonious assault, and one count of tampering with
evidence. Each count contained a firearm specification. The case proceeded to trial in
December 2009. The jury found Ruark guilty of murder, felonious assault, and tampering
with evidence, each with a firearm specification. The trial court sentenced Ruark to a total
of 31 years to life in prison. On May 10, 2011, this court affirmed the convictions. State v.
Ruark, 10th Dist. No. 10AP-50, 2011-Ohio-2225.                In January 2012, Ruark filed an
No. 15AP-142                                                                            2


application for reopening, pursuant to App.R. 26(B), alleging, among other things,
ineffective assistance of counsel. In April 2012, this court denied the application for
reopening.
       {¶ 3} In November 2010, and while the direct appeal was pending, Ruark filed his
first postconviction petition. In that petition, Ruark alleged ineffective assistance of
counsel, due process and equal protection violations, and a First Amendment violation.
The trial court denied the petition in February 2011. Ruark did not appeal from that
judgment.
       {¶ 4} In January 2015, Ruark filed a second postconviction petition. On February
3, 2015, and without holding a hearing on the matter, the trial court filed a decision and
entry denying Ruark's January 2015 postconviction petition. Ruark timely appeals from
that judgment.
II. Assignments of Error
       {¶ 5} Ruark assigns the following errors for our review:
                [1.] Did the Trial Court Abused its discretion by denying
                appellants 2953.23(A). Motion to Vacate or Set Aside
                Judgment of Conviction upon discovery of new evidence, That
                would change the outcome of trial if a new trial was granted?

                [2.] Did the Trial Court Abused its discretion by denying
                appellants 2953.23(A). Motion to Vacate or Set Aside
                Judgment of Conviction upon discovery of new evidence,
                Without holding an evidentiary hearing to weigh the
                evidence?

(Sic passim.)
III. Discussion
       {¶ 6} Because Ruark's two assignments of error challenge the trial court's denial
of his January 2015 petition for postconviction relief, we address them together.
       {¶ 7} The trial court's decision denying Ruark's January 2015 postconviction
petition without a hearing will be upheld absent an abuse of discretion. State v. Boddie,
10th Dist. No. 12AP-811, 2013-Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No.
03AP-147, 2003-Ohio-6305, ¶ 14. An abuse of discretion connotes a decision that is
unreasonable, arbitrary or unconscionable. Id., citing Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219 (1983).
No. 15AP-142                                                                                              3


        {¶ 8} As a general matter, a petition for postconviction relief is a collateral civil
attack on a criminal judgment, not an appeal of the judgment. State v. Sidibeh, 10th Dist.
No. 12AP-498, 2013-Ohio-2309, ¶ 8, citing State v. Steffen, 70 Ohio St.3d 399, 410
(1994). A petition for postconviction relief " 'is a means to reach constitutional issues
which would otherwise be impossible to reach because the evidence supporting those
issues is not contained in the record.' " Id., quoting State v. Murphy, 10th Dist. No.
00AP-233 (Dec. 26, 2000). Thus, a postconviction petition does not provide a petitioner
a second opportunity to litigate his or her conviction. Id., citing State v. Hessler, 10th
Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 32. Instead, R.C. 2953.21 affords a petitioner
postconviction relief " 'only if the court can find that there was such a denial or
infringement of the rights of the prisoner as to render the judgment void or voidable
under the Ohio Constitution or the United States Constitution.' " Id., quoting State v.
Perry, 10 Ohio St.2d 175 (1967), paragraph four of the syllabus.
        {¶ 9} Ruark's petition was a second petition for postconviction relief and was also
untimely because he filed his petition years after the filing of the trial transcript in the
direct appeal.1 A trial court may not entertain a second or untimely postconviction
petition unless the petitioner initially demonstrates either: (1) he was unavoidably
prevented from discovering the facts necessary for the claim for relief, or (2) the United
States Supreme Court recognized a new federal or state right that applies retroactively to
persons in the petitioner's situation. R.C. 2953.23(A)(1)(a). If the petitioner can satisfy
one of those two conditions, he must also demonstrate that, but for the constitutional
error at trial, no reasonable finder of fact would have found him guilty.                             R.C.
2953.23(A)(1)(b). These requirements are jurisdictional. See State v. Hollingsworth,
10th Dist. No. 08AP-785, 2009-Ohio-1753, ¶ 8; State v. Brown, 10th Dist. No. 08AP-747,
2009-Ohio-1805, ¶ 11.
        {¶ 10} Here, Ruark does not assert the United States Supreme Court has
recognized a new federal or state right that applies retroactively to his situation.
Accordingly, the trial court lacked jurisdiction to entertain Ruark's second postconviction
petition unless he demonstrated that he was unavoidably prevented from discovering the

1The trial transcript in the direct appeal was filed June 7, 2010. Under either the 180-day deadline in R.C.
2953.21(A)(2), which was in effect at the time of the filing of the January 2015 petition, or the 365-day
deadline in R.C. 2953.21(A)(2), as amended in March 2015, Ruark's petition was untimely.
No. 15AP-142                                                                                4


facts necessary for his claim for relief, and that, but for a constitutional error, no
reasonable factfinder would have found him guilty. See R.C. 2953.23(A)(1).
       {¶ 11} Ruark failed to demonstrate he was unavoidably prevented from
discovering the facts on which he based his untimely and successive postconviction
petition. The exception contained in R.C. 2953.23(A)(1)(a) involves newly discovered
evidence. State v. Turner, 10th Dist. No. 06AP-876, 2007-Ohio-1468, ¶ 11, citing State v.
Taylor, 4th Dist. No. 06CA20, 2007-Ohio-1185, ¶ 8. The phrase "unavoidably prevented"
in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of the relied upon facts and
was unable to learn of them through reasonable diligence. Id., citing State v. McDonald,
6th Dist. No. E-04-009, 2005-Ohio-798, ¶ 19.            And the "facts" contemplated by
R.C. 2953.23(A)(1)(a) are the historical facts of the case, which occurred up to and
including the time of conviction.      Id., citing State v. Czaplicki, 2d Dist. No. 16589
(May 29, 1998).
       {¶ 12} The documents submitted by Ruark in connection with his January 2015
postconviction petition included the following: (1) decisions of the Supreme Court of
Ohio suspending Ruark's trial counsel from the practice of law, (2) an affidavit of Ruark
asserting he fired his trial counsel prior to trial, (3) an affidavit of Ruark asserting his
reasons for not expressing his concerns regarding his trial counsel to the trial court, (4) an
affidavit of Ruark's mother, Jeni Jackson, asserting Ruark had fired his trial counsel
before trial, and (5) a document from the Ohio Valley Native American Outreach Group,
Inc., containing the signature of individuals claiming Ruark fired his trial counsel. Ruark
attached an affidavit of Mathew Glaser to his appellate brief, but this affidavit was not
filed in the trial court. As such, it will not be considered in this appeal. See State v.
Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of syllabus ("A reviewing court cannot
add matter to the record before it, which was not a part of the trial court's proceedings,
and then decide the appeal on the basis of the new matter.").
       {¶ 13} Ruark's reliance on the above-cited documents fails to demonstrate that he
was unavoidably prevented from discovering the facts necessary for his claim for relief, as
required under R.C. 2953.23(A)(1)(a).       Ruark fails to allege or show that there is
information contained in the submitted affidavits that was neither already known to him
nor available with reasonable diligence.      Additionally, the Supreme Court decisions
No. 15AP-142                                                                              5


regarding Ruark's trial counsel do not concern facts pertinent to this case. In 2012,
Ruark's trial counsel was disciplined for improperly disclosing to the then Ohio State
University football coach confidential information he received from a prospective client.
See Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457. Subsequently,
Ruark's trial counsel was indefinitely suspended from the practice of law due to his
dishonest and fraudulent conduct in connection with a speeding ticket. See Disciplinary
Counsel v. Cicero, 143 Ohio St.3d 6, 2014-Ohio-4639. Ruark's trial counsel's discipline
was unrelated to Ruark's trial and conviction and, therefore, does not constitute newly
discovered evidence pertaining to facts of this matter. Because Ruark failed to satisfy R.C.
2953.23(A)(1)(a), we need not address the applicability of R.C. 2953.23(A)(1)(b). See
Turner at ¶ 18.
         {¶ 14} The trial court lacked jurisdiction to entertain his petition because Ruark
failed to establish the applicability of an exception that would allow the trial court to
consider his untimely and successive postconviction petition, State v. Russell, 10th Dist.
No. 05AP-391, 2006-Ohio-383, ¶ 7. Therefore, the trial court did not err in denying
Ruark's petition, although technically, the petition should have been dismissed for lack of
jurisdiction.     State v. Mangus, 10th Dist. No. 06AP-1105, 2009-Ohio-6563, ¶ 13;
Hollingsworth at ¶ 10. Further, because the trial court lacked jurisdiction to consider
Ruark's petition, it was not required to hold an evidentiary hearing. State v. Burke, 10th
Dist. No. 02AP-677, 2002-Ohio-6840, ¶ 19.
         {¶ 15} For these reasons, we overrule Ruark's first and second assignments of
error.
IV. Disposition
         {¶ 16} Having overruled Ruark's first and second assignments of error, we affirm
the judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.

                             TYACK and SADLER, JJ., concur.
