[Cite as State v. Staffrey, 2018-Ohio-4916.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                           STATE OF OHIO,

                                               Plaintiff-Appellee,

                                                       v.

                                      DANIEL M. STAFFREY,

                                         Defendant-Appellant.


                         OPINION AND JUDGMENT ENTRY
                                          Case No. 18 MA 0061


                                    Criminal Appeal from the
                        Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 1995 CR 819

                                         BEFORE:
                  Gene Donofrio, Carol Ann Robb, Kathleen Bartlett, Judges.


                                                  JUDGMENT:
                                                    Affirmed


Atty. Paul Gains, Prosecuting Attorney and Atty. Ralph Rivera, Assistant Prosecutor,
Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor,
Youngstown, Ohio 44503-1426, for Plaintiff-Appellee and

Daniel Staffrey, Inmate No. 332-476, Grafton Correctional Institution, 2500 South Avon-
Belden Road, Grafton, Ohio 44044, for Pro Se Defendant-Appellant.
                                                                                        –2–


                                Dated: December 4, 2018


Donofrio, J.

      {¶1}     Defendant-appellant, Daniel Staffrey, appeals from a Mahoning County
Common Pleas Court judgment denying his petition for postconviction relief.
      {¶2}      The facts as set out in appellant’s direct appeal are as follows:

               The events giving rise to this action culminated on September 29,
      1995 when Daniel M. Staffrey, Sr. (appellant), broke into his ex-wife's * * *
      home. He thereafter held her against her will for approximately three hours
      during which time he repeatedly physically, sexually and verbally
      assaulted her. During this time, appellant additionally made threats to kill
      [her]. It was only after a period of several hours that [she] was able to
      persuade appellant to let her go.

               Appellant was eventually indicted on November 22, 1995 by the
      Mahoning County Grand Jury. The indictment proposed four separate
      counts as follows: rape in violation of R.C. 2907.02(A)(2), a felony of the
      first degree; attempted aggravated murder in violation of R.C. 2923.02(A)
      and 2903.01(A), a felony of the first degree; kidnaping in violation of R.C.
      2905.01(A)(4), a felony of the first degree; and aggravated burglary in
      violation of 2911.11(A)(3), a felony of the first degree. All four counts were
      accompanied by firearms specifications.

               Appellant initially plead not guilty on all four counts. However, he
      subsequently withdrew his not guilty plea and entered a plea of not guilty
      by reason of insanity on all counts. Following an examination by a state
      appointed psychologist who found appellant competent to stand trial,
      appellant chose to enter into a plea agreement with the state. Pursuant to
      Crim.R. 11(F), appellant executed a plea agreement on June 27, 1996 in
      regards to all of the charges. In return for appellant entering pleas of guilty
      on the four first degree felonies, the state agreed to recommend that the



Case No. 18 MA 0061
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       firearm specifications which accompanied all of the charges be dismissed.
       Furthermore, the state agreed to remain silent as to any recommendation
       to the court on sentencing.

              The trial court held a sentencing hearing on November 26, 1996. At
       that time, the prosecution presented the victim of the crimes to offer her
       statement to the court. In an attempt to provide mitigating circumstances
       to the court regarding sentencing, appellant offered testimony from four
       witnesses on his behalf. Additionally, appellant, as well as his counsel,
       made statements to the court regarding the appropriate sentence in this
       case. Based upon the information obtained by the trial court at the
       sentencing hearing, a sentence of ten to twenty-five years was imposed
       on the counts of rape, kidnaping and aggravated burglary. Said terms of
       incarceration were ordered by the court to be served concurrently.
       Additionally, a five to twenty-five year sentence was imposed on the
       attempted aggravated murder count which was to be served consecutively
       with the ten to twenty-five year sentences.

State v. Staffrey, 7th Dist. No. 96 CA 246, 1999 WL 436719, *1 (June 25, 1999). This
court affirmed appellant’s convictions and sentence. Id.
       {¶3}    On June 26, 2009, appellant filed a “Motion to Withdraw Guilty Plea
(Crim.R.32.1), Motion for Resentencing, Request for Hearing.” When the motion was
not resolved, appellant filed with this court a petition for writ of mandamus and/or
procedendo to compel the trial court to resentence him in accordance with the Ohio
Supreme Court case of State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163. This court denied the petition for lack of the appropriate affidavit. State ex
rel. Staffrey v. Mahoning Cty. Court of Common Pleas, 7th Dist. No. 09-MA-194, 2010-
Ohio-616.
       {¶4}    Next, appellant filed another petition for writ of mandamus and/or
procedendo to compel the trial court to resentence him, this time with the appropriate
affidavit. This court granted appellant’s request for a writ in part. State ex rel. Staffrey
v. D'Apolito, 7th Dist. No. 10 MA 59, 188 Ohio App.3d 56, 2010-Ohio-2529, 934 N.E.2d



Case No. 18 MA 0061
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388. We held that appellant was entitled to have a ruling on his motion to withdraw his
guilty plea and to have his sentence corrected under Baker because the sentencing
entry's mention of a plea form did not establish that a guilty plea was the manner of
conviction. Id. But we held appellant was not entitled to a new sentencing hearing. Id.
       {¶5}     The trial court subsequently issued a revised sentencing entry and
overruled appellant’s motion to withdraw his plea. Appellant appealed and this court
affirmed the trial court’s denial of his motion to withdraw his plea. State v. Staffrey, 7th
Dist. No. 10 MA 130, 2011-Ohio-5760.
       {¶6}     On June 12, 2017, appellant filed a petition to vacate or set aside
judgment of conviction or sentence.         The trial court dismissed appellant’s petition
without a hearing. It found appellant’s petition to be untimely and, therefore, found it
lacked jurisdiction to consider it. Additionally, the court noted that appellant’s claims
would be barred by the doctrine of res judicata.
       {¶7}     Appellant filed a timely notice of appeal on June 1, 2018. He now raises
two assignments of error.
       {¶8}     Appellant’s first assignment of error states:

               THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       DENIED APPELLANT’S POST-CONVICTION PETITION IN VIOLATION
       OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE
       UNITED STATES CONSTITUTION.

       {¶9}     Appellant argues his trial counsel forced and coerced him into rejecting
the State’s plea deal of a maximum sentence of nine years in prison. He claims he
waited to file his postconviction petition until his family was able to locate the trial court’s
old bailiff and a Mahoning County Sheriff’s Deputy, who were both present when he
rejected the plea deal. Appellant claims that in April 1996, his trial counsel and his
business partner came to him in jail and presented him with the nine-year plea deal. He
alleged both his partner and his counsel advised him not to take the deal because they
thought he could do better.
       {¶10}    Appellant also makes a claim that he entered into a plea deal where he
would serve an aggregate sentence of four to 25 years, with all sentences to be served


Case No. 18 MA 0061
                                                                                        –5–


concurrently. But appellant ended up entering a deal where the court sentenced him to
serve 15 to 50 years. He asserts, therefore, that his plea was not knowingly entered.
       {¶11} A petitioner must file his postconviction petition no later than 365 days
after the date on which the trial transcript is filed in the direct appeal of the judgment of
conviction. R.C. 2953.21(A)(2).
       {¶12} In this case, the transcripts were filed in appellant's direct appeal on
December 23, 1996. Thus, approximately 22 years have passed since the filing of the
transcripts in appellant's direct appeal.
       {¶13} The requirement that a postconviction petition be filed timely is
jurisdictional.   R.C. 2953.23(A) (“a court may not entertain a petition filed after the
expiration of the period prescribed [in R.C. 2953.21]”). Unless the petition is filed timely,
the court is not permitted to consider the substantive merits of the petition. State v.
Beaver, 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (11th Dist.1998) (the trial court
should have summarily dismissed appellant's untimely petition without addressing the
merits).
       {¶14} If a postconviction petition is filed beyond the time limitation or the petition
is a second or successive petition for postconviction relief, R.C. 2953.23(A) precludes
the court from entertaining the petition unless: (1) the petitioner shows that he was
unavoidably prevented from discovering the facts upon which his claim for relief is
based, or (2) after the time period expired, the United States Supreme Court recognized
a new federal or state right that applies retroactively to the petitioner and is the basis of
his claim for relief. R.C. 2953.23(A)(1)(a). The petitioner must then show “by clear and
convincing evidence that, but for constitutional error at trial, no reasonable fact finder
would have found [him] guilty of the offense of which [he] was convicted.”              R.C.
2953.23(A)(1)(b).      Unless the defendant makes the showings required by R.C.
2953.23(A), the trial court lacks jurisdiction to consider either an untimely or a second or
successive petition for postconviction relief. State v. Carter, 2d Dist. No. 03-CA-11,
2003-Ohio-4838, citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st
Dist.1998).




Case No. 18 MA 0061
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       {¶15} Appellant’s petition was clearly untimely. Additionally, it is a second or
successive petition. Thus, the trial court was without jurisdiction to entertain it unless
appellant demonstrated one of the two alternatives set out in R.C. 2953.23(A)(1)(a).
       {¶16} Appellant has made no claim that the United States Supreme Court has
recognized a new right that applies retroactively to him. Instead, appellant asserts he
was unavoidably prevented from discovering the facts upon which his claim for relief is
based. Specifically, appellant asserted in his petition that he “was unable to locate and
obtain the necessary affidavits of some neutral parties [sic.] witnesses (ex-officers of the
court) with knowledge of the incident until recently[.]” This is the only basis he offers for
his petition’s untimeliness. Attached to his petition are several affidavits of persons who
averred either that appellant was first offered a nine-year plea deal, which his attorney
advised him not to take, or that the trial court misinformed appellant of his sentence and
his attorney waived that error.
       {¶17} Nothing in the affidavits suggests that the affiants were unavailable for the
last 22 years. Appellant offered no explanation for the delay other than he was “unable
to locate and obtain” the affidavits until recently. Yet he offers no further explanation.
       {¶18} Moreover, appellant stated in the petition that he “knew at the conclusion
of his sentence the alleged ineffective assistance of his counsel based [on] the
prejudice that arises under Strickland v. Washington, when trial counsel’s deficient
performance to reject a plea deal that would have resulted in a lower sentence.” Thus,
appellant admits he has been aware of this alleged error since 1996.
       {¶19} Based on the above, appellant has not demonstrated he was unavoidably
prevented from discovering the facts upon which his claim for relief is based. By his
own admission, he knew of the facts since 1996.
       {¶20} Thus, the trial court properly dismissed appellant’s petition for lack of
jurisdiction.
       {¶21}    Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶22}    Appellant’s second assignment of error states:

                THE TRIAL COURT ERRED IN DENYING APPELLANT’S POST-
       CONVICTION        RELIEF      PETITION       WHERE       HE     PRESENTED


Case No. 18 MA 0061
                                                                                    –7–


       SUFFICIENT EVIDENCE DEHORS THE RECORD TO MERIT AN
       EVIDENTIARY HEARING.

       {¶23}    Appellant contends the trial court should have held an evidentiary
hearing on his postconviction petition.
       {¶24}    Because the trial court was without jurisdiction to entertain appellant’s
petition, it could not have held a hearing on the matter.
       {¶25}    Accordingly, appellant’s second assignment of error is without merit and
is overruled.
       {¶26}    For the reasons stated above, the trial court’s judgment is hereby
affirmed.




Robb, P. J., concurs

Bartlett, J., concurs




Case No. 18 MA 0061
[Cite as State v. Staffrey, 2018-Ohio-4916.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
against the Appellant.


        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                         NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
