         [Cite as State v. Smith, 2020-Ohio-1370.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                       :   APPEAL NO. C-190162
                                                         TRIAL NO. B-1505510
        Respondent-Appellee,                         :

  vs.                                                :      O P I N I O N.
WILLIAM ANTONIO SMITH,                               :

    Petitioner-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: April 8, 2020




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Respondent-Appellee,

William Antonio Smith, pro se.
                   OHIO FIRST DISTRICT COURT OF APPEALS



MOCK, Presiding Judge.

       {¶1}     Petitioner-appellant William Antonio Smith appeals the Hamilton

County Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et

seq. for postconviction relief. Because the court had no jurisdiction to entertain

Smith’s late postconviction petition, we affirm the judgment as modified to dismiss

the petition.

       {¶2}     In 2017, Smith was convicted of having weapons while under a disability

and two counts of murder in connection with the deaths of his friends Alma Jean Owens

and MacArthur Jackson, Sr., during an altercation in Jackson’s apartment. Owens was 57

years old and 5’1’’ tall. Smith shot her three times: one shot shattered her right leg; a

close-range shot struck her on the right side of her jaw; and the fatal shot struck her under

her right eye. Jackson was 72 years old, 5’4” tall, and suffered from chronic lung disease,

hypertension, and arteriosclerosis. He sustained three gunshots to the head and multiple

cuts on his hands and head, including the fatal 6½-inch-long cut to his neck, found by the

coroner to have required up to a dozen strokes. Then-27-year-old Smith gave police

multiple conflicting accounts of his role in their deaths, then admitted killing them, but

claimed that he had acted in self-defense after Owens attacked him with a sharp object

and Jackson physically assaulted him.

       {¶3}     Evidence was also adduced at trial showing that Smith had sustained

substantial cuts to his hand, neck, face, and side. At Smith’s request, the trial court

instructed the jury on the affirmative defense of self-defense and on voluntary

manslaughter as an offense of inferior degree to murder. But the jury returned verdicts

finding Smith guilty of murder. And this court, in affirming those convictions on direct

appeal, overruled Smith’s challenges to the weight and sufficiency of the evidence to

support those verdicts. See State v. Smith, 1st Dist. Hamilton No. C-170028, 2018-

Ohio-2504, appeals not accepted, 154 Ohio St.3d 1444, 2018-Ohio-4962, 113 N.E.3d

553 (affirming convictions, but remanding for consecutive-sentences findings). In


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                  OHIO FIRST DISTRICT COURT OF APPEALS



our assessment, substantial, credible evidence supported the jury’s verdicts that Smith had

purposely caused the victims’ deaths, and Smith failed to sustain his burden of proving

that he had acted in self-defense. Specifically, with respect to Smith’s self-defense

claim, we found no evidence that he had not been at fault in creating the violent

situation, had acted under an objectively reasonable belief that he had been in

danger of imminent death or great bodily harm, or had not violated any duty to

retreat or avoid the danger. Id. at ¶ 56-66.

                              The Postconviction Petition
       {¶4}    In 2018, Smith filed a postconviction petition seeking relief from his

convictions on the grounds that (1) his trial counsel had been ineffective in failing to

support his self-defense claim with witnesses and hospital records showing the

“defensive” nature of his injuries, and (2) he had been denied due process because he

was “not afforded the presentation of evidentiary documentation or witnesses to

refute [the state’s] evidence and witnesses.” He supported the petition with a report

generated by the University of Cincinnati Medical Center concerning a follow-up

surgical procedure required for the injuries to his hand. He also offered his own

affidavit attesting to his pretrial requests that trial counsel subpoena that report, a

physician, two character witnesses, and records generated by the emergency room at

Good Samaritan Hospital, where his injuries had first been treated.                In two

subsequent motions, he unsuccessfully sought “leave to supplement” the petition

with “newly obtained evidence” in the form of the Good Samaritan Hospital

emergency-room records.

       {¶5}    Smith here appeals from the common pleas court’s judgment denying

his postconviction petition. On appeal, he presents three assignments of error.

                             Amendment Improperly Denied
       {¶6}    We address first the second assignment of error, challenging the

overruling of Smith’s motions for leave to supplement his postconviction petition


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with the Good Samaritan Hospital emergency-room records. The challenge is well

taken.

         {¶7}   R.C. 2953.21(G)(2) affords a postconviction petitioner the right to

“amend[]” a postconviction petition “at any time before the [state’s] answer or [a

summary-judgment] motion is filed.” With his July 6 and 10, 2018 motions for leave

to supplement his postconviction petition, Smith sought to amend his petition to add

evidentiary material supporting his postconviction claims. Because the state did not

respond to the petition until July 25, 2018, when it filed its memorandum in

opposition to the petition, Smith had a right under R.C. 2953.21(G)(2) to amend his

petition. The effect of the common pleas court’s entry overruling Smith’s motions

was to deny him that right. We, therefore, hold that the court erred in overruling the

motions.

         {¶8}   This holding does not, however, compel reversal of the common pleas

court’s judgment denying Smith’s postconviction petition. The common pleas court

did not reach the merits of Smith’s late postconviction claims because it determined

that it had no jurisdiction to do so. Because we conclude, for the following reasons,

that those claims were subject to dismissal for lack of jurisdiction, the denial of

Smith’s right to amend his petition with evidentiary material supportive of the claims

cannot be said to have been prejudicial.        Accordingly, we overrule the second

assignment of error.

                        No Jurisdiction to Entertain the Petition
         {¶9}   Smith’s first and third assignments of error may fairly be read together

to challenge the denial of his postconviction petition without an evidentiary hearing.

That challenge is untenable.

         {¶10} No prison-mailbox rule.          R.C. 2953.21(A)(2) required Smith to

file his postconviction petition within 365 days from the filing of the transcript of the




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proceedings in his direct appeal. His petition was not filed with the clerk of courts

within the prescribed time.

       {¶11}   Smith asserts on appeal that he satisfied the time restrictions of R.C.

2953.21(A)(2) by timely delivering the petition to the prison mailroom. But a prison-

mailbox rule does not operate in this state. State ex rel. Tyler v. Alexander, 52 Ohio

St.3d 84, 555 N.E.2d 966 (1990) (overruling State v. Williamson, 10 Ohio St.2d 195,

226 N.E.2d 735 (1967), declining to adopt the federal prison-mailbox rule of Houston

v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), and holding that

a notice of appeal is considered filed on the day it is filed with the clerk of courts).

Therefore, for purposes of R.C. 2953.21(A)(2), a postconviction petition is filed when

it is filed with the clerk of courts, not when it is placed in the prison mailing system.

State v. VanCleve, 12th Dist. Clermont No. CA2014-03-024, 2015-Ohio-230, ¶17, fn.

2; State v. Lester, 3d Dist. Auglaize No. 2-07-23, 2007-Ohio-5627, ¶ 6-12; State v.

Friley, 10th Dist. Franklin No. 05AP-15, 2006-Ohio-230, ¶ 9; State v. Williams, 157

Ohio App.3d 374, 2004-Ohio-2857, 811 N.E.2d 561, ¶ 8-12 (8th Dist.); State v.

Lathan, 6th Dist. Lucas No. L-00-1073, 2000 WL 1005206 (July 21, 2000); State v.

Springs, 7th Dist. Mahoning No. 97 CA 68, 1999 WL 148369 (Mar. 11, 1999), fn. 1;

State v. Bowens, 11th Dist. Ashtabula No. 97-A-004, 1998 WL 553049 (June 26,

1998); State v. Coots, 9th Dist. Wayne No. 96CA0095, 1997 WL 803125 (Dec. 24,

1997); State v. Vroman, 4th Dist. Ross No. 96CA 2258, 1997 WL 193168 (Apr. 15,

1997); State v. Smith, 123 Ohio App.3d 48, 50, 702 N.E.2d 1245 (2d Dist.1997)

(following Tyler to hold that a prison-mailbox rule does not operate to preclude the

dismissal of a postconviction petition on the ground that it was not timely filed).

Accordingly, Smith’s petition was not timely filed.

       {¶12} No jurisdiction under postconviction statutes. Because the
petition was not timely filed, the postconviction statutes conferred upon the common

pleas court jurisdiction to entertain Smith’s late postconviction claims only upon


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                   OHIO FIRST DISTRICT COURT OF APPEALS



satisfaction of R.C. 2953.23.     Smith was required to show either that he was

unavoidably prevented from discovering the facts upon which his postconviction

claims depend or that his claims were predicated upon a new retrospectively

applicable right recognized by the United States Supreme Court since the time for

filing the claims had expired. And he was required to show “by clear and convincing

evidence that, but for constitutional error at trial, no reasonable factfinder would

have found [him] guilty of the offense[s] of which [he] was convicted * * *.” R.C.

2953.23(A)(1).

       {¶13} Smith’s ineffective-counsel and due-process claims were not
predicated upon a new retrospectively applicable right recognized by the United

States Supreme Court since the time for filing those claims had expired. On appeal,

he argues that he was unavoidably prevented from timely filing his postconviction

petition, because his request for the Good Samaritan emergency-room records had

been delayed by the county public defender’s delay in notifying him that it was

declining his case. But his postconviction petition and its supporting evidentiary

material did not speak to, much less demonstrate, the matter of unavoidable

prevention. Nor does the record otherwise reflect efforts on his part or on his behalf

to secure the evidence upon which his ineffective-counsel and due-process claims

depended. Because he failed to satisfy the R.C. 2953.23 jurisdictional requirements

for entertaining a late postconviction claim, the postconviction statutes did not

confer upon the common pleas court jurisdiction to entertain Smith’s petition. See

R.C. 2953.23(A)(1).

       {¶14}     Not void. Finally, a court always has jurisdiction to correct a void
judgment. State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856

N.E.2d 263, ¶ 18-19. But neither his due-process claim nor his ineffective-counsel

claim, even if demonstrated, would have rendered his convictions void. See State v.

Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009, ¶ 8; State v.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a

judgment of conviction is void only to the extent that a sentence is unauthorized by

statute or does not include a statutorily mandated term or if the trial court lacks

subject-matter jurisdiction or the authority to act); see also State v. Hayes, 1st Dist.

Hamilton No. C-130450, 2014-Ohio-1263, ¶ 5 (holding that the ineffective assistance

of counsel does not render a conviction void).

                                     We Affirm
       {¶15} Because the common pleas court had no jurisdiction to entertain
Smith’s postconviction petition, the petition was subject to dismissal without an

evidentiary hearing. See R.C. 2953.21(D) and 2953.23(A). We, therefore, modify the

court’s judgment denying the petition to reflect its dismissal. See App.R. 12(A)(1)(a).

And we affirm that judgment as modified.

                                                      Judgment affirmed as modified.

BERGERON and WINKLER, JJ., concur.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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