[Cite as State v. Bates, 2017-Ohio-8408.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105766




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   MAURICE L. BATES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-580371-A

        BEFORE: E.A. Gallagher, P.J., Blackmon, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: November 2, 2017
ATTORNEY FOR APPELLANT

Maurice L. Bates, pro se
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44061


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Amy Venesile
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant Maurice Bates appeals the denial of his postconviction

petition to vacate or set aside the judgment of conviction of sentence in the Cuyahoga

County Court of Common Pleas. We affirm.

       {¶2} The relevant facts and procedural history of this case are set forth in State v.

Bates, 8th Dist. Cuyahoga No. 102756, 2015-Ohio-4989. The present appeal is limited

to Bates’s postconviction petition to vacate his conviction filed on April 10, 2017,

wherein he alleged that his trial counsel provided ineffective assistance of counsel by (1)

inducing him to enter a guilty plea based on a promise of a lesser sentence than that

received and (2) failing to investigate his case.

       {¶3} In a petition for postconviction relief based on a claim of ineffective

assistance of counsel, the petitioner bears the initial burden to submit evidentiary

documents containing sufficient operative facts to demonstrate: (1) deficient performance

by counsel, i.e., performance falling below an objective standard of reasonable

representation, and (2) that counsel’s deficient performance prejudiced him, i.e., a

reasonable probability that but for counsel’s errors, the result of the proceeding would

have been different. State v. Moore, 2d Dist. Clark No. 2014-CA-66, 2015-Ohio-550, ¶

13, citing State v. Kapper, 5 Ohio St.3d 36, 38, 448 N.E.2d 823 (1983); see also

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and

three of the syllabus.

       {¶4} There are strict time limits for seeking postconviction relief under R.C.

2953.21. Under R.C. 2953.21(A)(2), a petition for postconviction relief must be filed no

later than 365 days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the conviction or, if no appeal is taken, no later than 365

days after the expiration of time for filing the appeal.

       {¶5} If a defendant’s petition is untimely under R.C. 2953.21(A)(2), then it must

comport with R.C. 2953.23(A). Under R.C. 2953.23(A)(1), the trial court may not

consider a delayed petition for postconviction relief unless the petitioner satisfies two

requirements. First, the petitioner must demonstrate either that (1) he was unavoidably

prevented from discovering the facts upon which he relies in the petition or (2) the United

States Supreme Court has recognized a new federal or state right that applies retroactively

to the petitioner. R.C. 2953.23(A)(1)(a). Second, the petitioner must establish by clear

and convincing evidence that no reasonable factfinder would have found him guilty but

for constitutional error at trial. R.C. 2953.23(A)(1)(b).

       {¶6} The time limit for filing a motion for postconviction relief is jurisdictional.

State v. Johns, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162, ¶ 8. Unless a defendant

makes the showings required by R.C. 2953.23(A), the trial court lacks jurisdiction to

consider an untimely petition for postconviction relief.      State v. Thomas, 8th Dist.

Cuyahoga No. 99972, 2014-Ohio-1512, ¶ 8, citing State v. Carter, 2d Dist. Clark No.
03CA-11, 2003-Ohio-4838, ¶ 13, citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d

962 (1st Dist.1998). A trial court need not conduct an evidentiary hearing when it

dismisses an untimely postconviction relief petition. State v. Moon, 8th Dist. Cuyahoga

No. 101972, 2015-Ohio-1550, ¶ 23.

       {¶7} A trial court’s decision to deny a postconviction petition without a hearing is

reviewed for abuse of discretion. State v. Abdussatar, 8th Dist. Cuyahoga No. 92439,

2009-Ohio-5232, ¶ 16.     An “abuse of discretion” requires more than an error of law or

of judgment; it “implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶8} Bates concedes that his petition was filed beyond the time limitation set forth

in R.C. 2953.21(A)(2) but argues that he was unavoidably prevented from obtaining the

two affidavits that he attached to his petition pursuant to R.C. 2953.23(A)(1).      We find

no merit to Bates’s arguments. The first affidavit is from Alice Burns, Bates’s girlfriend

and the mother of his daughter.      On its face this affidavit clearly does not meet the

requirements of R.C. 2953.23(A)(1)(a).     The second affidavit is from Issac Strozier who

averred that Bates was present at the shooting in this case and that he did not see Bates

with a firearm but, also, that he did not witness the actual shooting. Bates’s own

affidavit addresses his inability to locate two other alibi witnesses but fails to explain why

he was unavoidably prevented from securing the affidavits of either Burns or Strozier or
when he did, in fact, obtain them. Nor is there an averment in any of the affidavits

establishing that Bates’s trial attorney failed to interview Strozier.

       {¶9} Furthermore, Bates’s guilty plea bars him from satisfying the conditions

under R.C. 2953.23(A)(1) for the trial court to consider an untimely petition for

postconviction relief. State v. Rackley, 8th Dist. Cuyahoga No. 102962, 2015-Ohio-4504,

¶ 17. Although this court recognized a narrow exception to the general rule that a guilty

plea precludes the application of R.C. 2953.23(A)(1) in State v. Moon, 8th Dist.

Cuyahoga No. 101972, 2015-Ohio-1550, there is nothing in the limited record before us

to indicate the unique circumstances present in Moon exist in the present case.

       {¶10} Bates’s sole assignment of error is overruled.

       {¶11} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.

_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

PATRICIA A. BLACKMON, J., and
ANITA LASTER MAYS, J., CONCUR
