[Cite as State v. Stephens, 2016-Ohio-4942.]


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

STATE OF OHIO                                       C.A. No.     27957

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
CHAD STEPHENS                                       COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 11 09 2456

                                 DECISION AND JOURNAL ENTRY

Dated: July 13, 2016



        CARR, Presiding Judge.

        {¶1}     Appellant, Chad Stephens, appeals the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                               I.

        {¶2}     In 2012, Stephens was convicted of murder and aggravated robbery. The trial

court imposed a sentence of 23 years to life in prison. Stephens raised several arguments on

direct appeal, including that his speedy trial rights were violated and that trial counsel was

ineffective. Stephens’ convictions were affirmed by this Court. State v. Stephens, 9th Dist.

Summit No. 26516, 2013-Ohio-2223.

        {¶3}     On March 31, 2015, Stephens filed a petition for post-conviction relief.   In

support of his petition, Stephens argued that trial counsel rendered ineffective assistance by

failing to move for dismissal on speedy trial grounds. Stephens further claimed that he had

identified two witnesses who could exonerate him. The State moved to dismiss the petition on
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the basis that it was untimely. On August 4, 2015, the trial court denied the petition, concluding

that the petition was untimely and that Stephens failed to meet the requirements set forth in R.C.

2953.23(A)(1).

       {¶4}    On appeal, Stephens raises two assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN
       EVIDENTIARY HEARING ON THE TIMELINESS AND MERITS OF CHAD
       STEPHENS’ POST-CONVICTION PETITION.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN FINDING THE EVIDENCE PRESENTED IN
       STEPHENS’ PETITION DID NOT CONSTITUTE “NEWLY DISCOVERED
       EVIDENCE”, AND THERE WAS NO JUST CAUSE FOR DELAY.

       {¶5}    In his first assignment of error, Stephens contends that the trial court erred by

failing to conduct an evidentiary hearing prior to denying his petition. In his second assignment

of error, Stephens contends that the trial court erred by concluding that he failed to present newly

discovered evidence. This Court disagrees.

       {¶6}    As Stephens filed his petition on March 31, 2015, the recently amended version of

R.C. 2953.21(A)(2) is applicable in this matter. State v. Thomas, 8th Dist. Cuyahoga No.

103784, 2016-Ohio-3327, ¶ 9.       R.C. 2953.21(A)(2) now provides that a petition for post-

conviction relief “shall be filed no later than three hundred sixty-five days after the date on

which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of

conviction * * *.”    In Stephens’ direct appeal to this Court, the transcripts were filed on

September 10, 2012. Stephens did not file his petition for post-conviction relief until March 31,

2015, well after the 365-day window set forth in R.C. 2953.21(A)(2).
                                                  3


       {¶7}    A trial court does not have authority to entertain an untimely petition for post-

conviction relief unless the petitioner shows that: (1) either he or she was “unavoidably

prevented from discovery of the facts upon which the petition must rely to present the claim for

relief, or, [after the filing deadline], the United States Supreme Court recognized a new federal or

state right that applies retroactively to persons in the petitioner’s situation, and that the petition

asserts a claim based on that right;” and (2) the petitioner shows that but for the constitutional

error at trial, no reasonable fact-finder would have found petitioner guilty.                    R.C.

2953.23(A)(1)(a)-(b). When a party fails to satisfy the requirements for filing an untimely

petition under R.C. 2953.23(A)(1), the trial court does not err by failing to hold an evidentiary

hearing before dismissing the petition. State v. Luther, 9th Dist. Lorain No. 05CA008770, 2006-

Ohio-2280, ¶ 14, citing State v. Sprenz, 9th Dist. No. 22433, 2005-Ohio-1491, ¶ 15; State ex rel.

George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, ¶ 6.

       {¶8}    In this case, Stephens’ argument pertaining to the performance of trial counsel in

relation to his speedy trial rights constituted a refurbished adaptation of the legal arguments that

he raised on direct appeal. Stephens cites a concurring opinion filed in our decision resolving his

direct appeal in support of the proposition that his speedy trial claim is viable. Stephens, 2013-

Ohio-2223, ¶ 42 (Belfance, J., concurring in judgment only) (noting that “[t]he appellate record

does not contain any evidence of when the [out-of-county] holder was instituted”). We note,

however, that this Court’s majority decision concluded that Stephens admitted to the existence of

an out-of-county holder and determined that his speedy trial argument was meritless. Stephens,

2013-Ohio-2223, ¶ 8-15. Nonetheless, given that the procedural facts underpinning Stephens’

speedy trial claim were ascertainable before the deadline for filing a timely petition, the trial
                                                 4


court correctly concluded this argument did not constitute a valid basis for the filing of an

untimely petition.

       {¶9}    While Stephens did include a discussion of “newly discovered evidence” in his

untimely petition, he failed to demonstrate that he was unavoidably prevented from discovering

this evidence before the expiration of the 365-day window set forth in R.C. 2953.21(A)(2).

Stephens presented the affidavit of D.R., who claimed sole responsibility for the crimes that gave

rise to this matter. Significantly, D.R.’s affidavit was notarized on August 29, 2012, prior to the

date when the transcripts had been filed in Stephens’ direct appeal. Stephens also identified a

potential witness, A.L., who he “believe[d]” could offer exculpatory testimony. With respect to

the allegedly exculpatory testimony that D.R. and A.L. might offer, however, Stephens did not

offer a cogent explanation regarding how he was unavoidably prevented from discovering this

evidence within the timeframe prescribed by R.C. 2953.21(A)(2).

       {¶10} Stephens further maintained that the Supreme Court of the United States

recognized a new right applicable to his case in Martinez v. Ryan, 132 S.Ct. 1309 (2012). While

Martinez dealt with the right to challenge the performance of trial counsel in a post-conviction

proceeding, the Supreme Court limited its holding to circumstances where criminal defendants

were denied that right at the “initial review” stage of the litigation. Martinez at 1315. Unlike the

circumstances in Martinez, Stephens had the opportunity to, and did, raise an ineffective

assistance challenge on direct appeal. It follows that Martinez did not establish a new right

enabling Stephens to file an untimely petition. See generally State v. Glover, 8th Dist. Nos.

100330, 100331, 2014-Ohio-3228, ¶ 26-31.

       {¶11} Stephens’ untimely petition did not offer a viable reason as to why he was

unavoidably prevented from discovering the facts upon which his petition was based, nor did it
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identify a retroactive right that has been recognized by the United States Supreme Court.

Because Stephens did not meet the requirements for filing an untimely petition under R.C.

2953.23(A)(1), the trial court lacked authority to consider the merits of Stephens’ petition and

correctly denied him the requested relief without a hearing. Sprenz, 2005-Ohio-1491, at ¶ 15.

       {¶12} Stephens’ assignments of error are overruled.

                                                III.

       {¶13} Stephens’ assignments of error are overruled.         The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       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.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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MOORE, J.
HENSAL, J.
CONCUR.


APPEARANCES:

PAUL F. ADAMSON, Attorney at Law, for Appellant.

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