[Cite as State v. McGrath, 2012-Ohio-816.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 97207



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   JOSEPH McGRATH
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-516312 and CR-524159

              BEFORE:           Blackmon, A.J., Sweeney, J., and Cooney, J.

              RELEASED AND JOURNALIZED:                   March 1, 2012
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APPELLANT PRO SE

Joseph McGrath
Inmate No. 570-434
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Brett Kyker
Mary McGrath
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                             3
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant Joseph McGrath (“McGrath”) appeals pro se the trial court’s

denial of his petition for postconviction relief and the trial court’s calculation of jail-time

credit. He assigns six errors for our review.1

       {¶2} Having reviewed the record and pertinent law, we affirm McGrath’s

convictions. The apposite facts follow.

       {¶3} McGrath was indicted in two separate cases (Case Nos. CR-516312 and

CR-524159), which were joined for trial. McGrath was convicted of three counts of

menacing by stalking, two counts of violating a protection order, and one count of

resisting arrest. The trial court sentenced McGrath to a total of seven years in prison.

McGrath filed an appeal, and this court affirmed his convictions. State v. McGrath, 8th

Dist. No. 93445, 2010-Ohio-4477, 2010 WL 3721970.

       {¶4} After we issued our decision in the appeal, McGrath filed a motion for

jail-time credit on December 1, 2010, in which he argued he was entitled to 258 days of

jail-time credit. 2 On February 23, 2011, McGrath filed a petition for postconviction

relief in which he argued that the interlocutory temporary restraining order was

unenforceable and void for numerous reasons and the statutes governing postconviction

relief were unconstitutional.



       1
        See appendix.
       2
        One month after his sentencing, McGrath filed a motion for 260 days of
jail-time credit; however, the trial court failed to rule on the motion.
                                            4
       {¶5} The trial court denied the petition because it was untimely. The trial court

granted in part McGrath’s motion for jail-time credit, concluding he was only entitled to

247 days of jail-time credit instead of the requested 258 days.

                                     Allied Offenses

       {¶6} In his first assigned error, McGrath argues the trial court erred by not

merging his allied offenses.

       {¶7} This error was not raised in McGrath’s petition, which is the subject of this

appeal. Therefore, we have no jurisdiction to address the error. App.R. 3; State v.

Staats, 5th Dist. No. 2007-CA-00053, 2007-Ohio-3638, 2007 WL 2049917, at ¶ 34.

Additionally, McGrath raised this issue on direct appeal; therefore, res judicata prevents

our review of this assigned error. It is well established that any claim for postconviction

relief that was or could have been raised on direct appeal is barred from consideration by

the doctrine of res judicata. State v. Williams, 157 Ohio App.3d 374, 2004-Ohio-2857,

811 N.E.2d 561, ¶ 17, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104,

paragraph nine of the syllabus (1967). Accordingly, McGrath’s first assigned error is

overruled.



                                    Untimely Petition

       {¶8} We address McGrath’s assigned errors two, three, and four together because

they are all barred by the fact they were raised in an untimely filed petition for

postconviction relief.
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       {¶9} R.C. 2953.21(A)(2) provides that if a direct appeal is taken, a petition for

postconviction relief shall be filed no later than 180 days after the filing of the trial

transcript in the court of appeals. Here, the trial transcript in the prior appeal was filed in

the court of appeals on August 21, 2009. Therefore, his petition for postconviction relief

needed to be filed by February 21, 2010. McGrath did not file his petition until February

24, 2011. Because he filed the petition over a year after the required deadline, it was

untimely.

       {¶10}    Generally, the trial court has no jurisdiction to consider an untimely

petition for postconviction relief.         State v. Houston, 8th Dist. No. 95994,

2011-Ohio-2798, 2011 WL 2306062; State v. Knuckles, 8th Dist. No. 89361,

2008-Ohio-2031, 2008 WL 1903817; State v. Perotti, 8th Dist. No. 89731,

2008-Ohio-1266, 2008 WL 740530; State v. Schultz, 8th Dist. No. 85430,

2005-Ohio-6627, 2005 WL 3436349. The trial court may, however, entertain untimely

petitions for postconviction relief if the defendant demonstrates either (1) he was

unavoidably prevented from discovering 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 defendant’s situation. R.C. 2953.23(A)(1)(a). Neither of these

exceptions applies to the instant case. Therefore, the trial court did not err by denying

McGrath’s petition.
                                           6
       {¶11} Additionally, McGrath raised these issues on direct appeal. Therefore, res

judicata bars our review. Williams at ¶ 17. Accordingly, McGrath’s second, third, and

fourth assigned errors are overruled.

                     Constitutionality of R.C. 2953.21 and 2952.23

       {¶12} In his fifth assigned error, McGrath contends R.C. 2953.21 and 2953.23,

the statutes governing petitions for postconviction relief are unconstitutional because they

are in conflict with Civ.R. 1, Crim.R. 1, 35, and 47.         He contends that the time

requirements set forth in R.C. 2953.21 and 2952.23 do not provide time for the appellant

to conduct discovery.

       {¶13}     “A postconviction relief proceeding is a collateral civil attack on a

judgment and is not imbued with the same federal constitutional protections as are all of

the criminal proceedings which precede it.” State v. Lott, 8th Dist. Nos. 79790, 79792,

79291, 2002-Ohio-2752, 2002 WL 1265579, citing State v. Davie, 11th Dist. No.

2000-T-0104, 2001-Ohio-5842, 2001 WL 1647193 and Pennsylvania v. Finley, 481 U.S.

551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). “The long-standing rule in Ohio is that a

convicted criminal defendant has no right to additional or new discovery, whether under

Crim.R. 16 or any other rule, during postconviction relief proceedings.” State v. West,

7th Dist. No. 07 JE 26, 2009-Ohio-3347, 2009 WL 1929355, at ¶ 15, citing State ex rel.

Love v. Cuyahoga Cty. Prosecutor's Office, 87 Ohio St.3d 158, 159, 718 N.E.2d 426

(1999). The civil rules governing discovery likewise do not apply in a postconviction

relief proceeding. Id. at ¶ 16. Therefore, because McGrath did not have a right to
                                            7
discovery during postconviction relief proceedings, the time limit does not impinge on his

constitutional rights.

       {¶14}     The 180-day time limit has also been found constitutional because it

provides an exception to the 180-day rule when the petitioner can show he was

unavoidably prevented from discovering the error at an earlier date. State v. Sanders, 1st

Dist. C-980154, 1999 WL 162146 (Mar. 26, 1999).              Accordingly, McGrath’s fifth

assigned error is overruled.

                                      Jail-time Credit

       {¶15} In his sixth assigned error, McGrath argues the trial court incorrectly

calculated the amount of his jail-time credit. McGrath had requested 258 days; however,

the trial court concluded he was entitled to 247 days.3

       {¶16} Initially, we note that any issue regarding jail-time credit is usually raised

on direct appeal. State ex rel. Jones v. O’Connor, 84 Ohio St.3d 426, 704 N.E.2d 1223

(1999). However, in the instant case, the trial court ruled on McGrath’s motion for

jail-time credit after the decision in the direct appeal. Therefore, we conclude McGrath

properly raised the issue in an appeal from the trial court’s ruling on his motion.

       {¶17}    There is nothing in the record from which we can resolve whether the trial

court miscalculated the amount of jail-time credit. McGrath contends the trial court


       3
        We note the state argues McGrath’s petition did not include his request for
jail time. Although this is true, McGrath’s notice of appeal included the trial
court’s decision regarding his jail-time credit, which was decided on the same day
that the trial court denied his petition.
                                             8
granted him jail-time credit at his sentencing hearing, but failed to specify the number of

days in its sentencing entry. However, he failed to provide us with the transcript from

his sentencing hearing. Moreover, the record before us does not provide sufficient detail

from which we can calculate the days of jail-time credit. It is the defendant’s burden to

show the error in the calculation of jail-time credit. State v. Clemons, 8th Dist. No.

92054, 2009-Ohio-2726, 2009 WL 1629671, at ¶ 9; State v. Parsons, 10th Dist. No.

03AP-1176, 2005-Ohio-457, 2005 WL 289471, at ¶ 9; State v. Evans, 2d Dist. No. 21751,

2007-Ohio-4892, 2007 WL 2742576, at ¶ 13. “‘If the defendant fails to demonstrate error,

and no miscalculation in the jail-time credit is apparent from the record, any claimed error

must be overruled.’” Clemons, quoting State v. Slager, 10th Dist. Nos. 08AP581-582

and 08AP-709-710, 2009-Ohio 1804, 2009 WL 1027182, ¶ 25, citing State v. Hunter,

10th Dist. No. 08AP-183, 2008-Ohio-6962, 2008 WL 5423439. The alleged error is

not apparent on this record. Accordingly, McGrath’s sixth assigned error is overruled.

       {¶18}    Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
                                        9




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

JAMES J. SWEENEY, J., and
COLLEEN CONWAY COONEY, J., CONCUR


                                    APPENDIX

Assignments of Error

      I. The trial court committed plain error by its failure to merge allied
      offenses of similar import, pursuant to R.C. § 2941.24, State v. Johnson (2010),
      128 Ohio St.3d 1153, 942 N.E.2d 1061, the Ohio and United States
      Constitution.

      II. The trial court erred by not vacating the void judgment in accordance
      with its inherent powers to do so, as the temporary protection order was
      issued in accordance with unconstitutional statutes, R.C. § 2903.212; R.C. §
      2903.213; R.C. § 2903.214, both in conflict with Ohio Civ.R. 1, Ohio Civ.R. 65,
      and void, thereby divesting the trial court of subject matter jurisdiction over
      the prosecution for any violations of the void order and the trial court
      committed plain error by its failure to vacate the void judgment pursuant to
      its inherent powers in violation of the Ohio and United States constitutions.

      III. The trial court erred by not vacating the void judgment in accordance
      with its inherent powers to do so, as the temporary protection order was not
      issued in accordance with the procedural due process, substantial due
      process, equal protection guarantees of the Ohio and United States
      constitutions and the notice before its issuance, rendering the order
      unenforceable and “void” thereby divesting the trial court of subject matter
      jurisdiction over the prosecution for any violations of the void order.

      IV. The trial court erred by not vacating the void judgment in accordance
      with its inherent powers to do so, as the temporary protection order
      automatically terminated pursuant to R.C. 2903.214(E)(2) at the conclusion of
      the case it was issued for and was not extended by the trial court during any
      appeal in the final decree and/or sentencing journal entry rendering the order
      unenforceable and void, thereby divesting the trial court of subject matter
      jurisdiction over the prosecution for any violations of the void order.
                                 10


V. The statutes R.C. § 2953.21; R.C. § 2953.23 are in conflict with Ohio
Civ.R. 1, Crim.R. 1, Crim.R. 35, Crim.R. 47, and unconstitutional.

VI. The trial court abused its discretion by its failure to properly calculate
the correct number of days of jail time credit the appellant is entitled to and
to incorporate the days in the journal entry.
