[Cite as State v. Payne, 2016-Ohio-2819.]


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

STATE OF OHIO                                             C.A. No.   27947

        Appellee

        v.                                                APPEAL FROM JUDGMENT
                                                          ENTERED IN THE
BROLIN PAYNE                                              COURT OF COMMON PLEAS
                                                          COUNTY OF SUMMIT, OHIO
        Appellant                                         CASE No.   CR 2012 01 0028

                                 DECISION AND JOURNAL ENTRY

Dated: May 4, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Brolin Payne, appeals the judgment of the Summit County

Court of Common Pleas denying his successive petition for post-conviction relief. We affirm.

                                                  I.

        {¶2}     This Court affirmed Payne’s convictions for rape and gross sexual imposition on

direct appeal.     See State v. Payne, 9th Dist. Summit No. 26655, 2013-Ohio-5230, ¶ 26.

However, while the direct appeal was still pending before this Court, Payne filed a Motion to

Vacate or Set Aside Judgment of Conviction or Sentence with the trial court. The trial court

denied Payne’s petition, finding that the claims were barred by res judicata. Payne did not

appeal the trial court’s denial of his petition. On December 23, 2014, Payne filed a Motion to

Amend Post Conviction Petition with Leave. The trial court construed Payne’s motion as a

second or successive petition for post-conviction relief and denied it on March 25, 2015 for

failing to meet the criteria set forth in R.C. 2953.23.
                                                  2


       {¶3}       Payne filed this timely appeal, presenting two assignments of error for this

Court’s review. To facilitate our analysis, we elect to address both of Payne’s assignments of

error together.

                                       Assignment of Error I

       Law enforcement officers misconduct denied the petitioner his privileges and
       immunities, due process, and equal protection under the law guaranteed to
       him by the 14th Amendments of the United States Constitution by
       performing an illegal wiretap without the petitioner’s consent or “oral
       approval for interception” which further denied the petitioner’s 4th and 5th
       Amendment Rights to the U.S. Constitution. [Sic].

                                      Assignments of Error II

       Trial court deprived the petitioner freedom self incrimination and due
       process of law guaranteed to him by the 5th and 14th Amendment to the
       United States Constitution by allowing the admission use and disclosure of
       the contents of a “wire communication” from an illegal wiretap in a hearing
       and trial without presenting 10 days before the hearing or trial a copy of a
       written representation of a judge of a court of common pleas or of a
       prosecuting attorney that a “oral order interception without warrant” had
       been granted pursuant to Ohio Revised Code Section 2933.57, 2933.62(B) or
       18 USCS § 2518 et seq. [Sic].

       {¶4}       In his two assignments of error, Payne challenges the propriety of law

enforcement’s “one party consent call” and the trial court’s decision to admit the tape of the

phone call into evidence at trial. Payne asserts that the “one party consent call” and the trial

court’s decision to admit the taped phone call into evidence both constitute constitutional

violations. We decline to address the merits of the assignments of error, however, as we

conclude that the trial court was correct in determining that it lacked the authority to consider

Payne’s successive petition for post-conviction relief.

       {¶5}       This Court has recognized that “[s]uccessive petitions for post-conviction relief

are governed by R.C. 2953.23.” State v. Kyle, 9th Dist. Summit No. 25974, 2012-Ohio-456, ¶ 7.

R.C. 2953.23(A) precludes trial courts from “entertain[ing]” untimely petitions for post-
                                                 3


conviction relief unless one of the statute’s exceptions applies. Since this matter does not

involve DNA testing, the only possible exception that could apply in this matter is the one

contained in R.C. 2953.23(A)(1).      This provision requires that the petitioner establish two

conditions: (1) that he was unavoidably prevented from discovering the facts upon which he

relies in the petition, or that the United States Supreme Court has, since his last petition,

recognized a new federal or state right that applies retroactively to the petitioner; and (2)

showing by clear and convincing evidence that a reasonable factfinder would not have found him

guilty but for constitutional error at trial. See R.C. 2953.23(A)(1). “A defendant’s failure to

either timely file a petition for post-conviction relief or meet his burden under R.C.

2953.23(A)(1) deprives a trial court of [authority] to entertain the petition.” State v. Taylor, 9th

Dist. Lorain No. 14CA010549, 2014-Ohio-5738, ¶ 9.

       {¶6}    Here, the trial court denied Payne’s second or successive petition for post-

conviction relief after concluding that the petition did not meet the criteria set forth in R.C.

2953.23. Payne does not challenge on appeal the trial court’s conclusion that he failed to meet

his burden under R.C. 2953.23. As such, we determine that the trial court did not err in denying

Payne’s successive petition for post-conviction relief.

       {¶7}    Accordingly, we affirm the decision of the trial court.

                                                III.

       {¶8}    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.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

BROLIN PAYNE, pro se, Appellant.

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