[Cite as State v. Bocook, 2015-Ohio-3996.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. John W. Wise, P. J.
        Plaintiff-Appellee                       Hon. Patricia A. Delaney, J.
                                                 Hon. Craig R. Baldwin, J.
-vs-
                                                 Case No. CT2015-0025
DARYL D. BOCOOK

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Court of Common
                                              Pleas, Case No. CR93-5


JUDGMENT:                                     Affirmed



DATE OF JUDGMENT ENTRY:                        September 28, 2015



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

D. MICHAEL HADDOX                             DARYL D. BOCOOK
PROSECUTING ATTORNEY                          PRO SE
GERALD V. ANDERSON II                         SOCF
ASSISTANT PROSECUTOR                          Post Office Box 45699
27 North Fifth Street, P.O. Box 189           Lucasville, Ohio 45699
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0025                                                     2

Wise, P. J.

          {¶1}. Appellant Daryl D. Bocook appeals the decision of the Court of Common

    Pleas, Muskingum County, which denied his successive motion for post-conviction

    relief. Appellee is the State of Ohio. The relevant facts leading to this appeal are as

    follows.

          {¶2}. In August 1990, the body of Samuel Huffman was found floating in the

    Muskingum River. In March 1993, Appellant Bocook and a co-defendant, James

    Cremeans, were indicted for Huffman's murder.

          {¶3}. Appellant's case proceeded to a jury trial in September 1993 in the Court

    of Common Pleas, Muskingum County. Appellant was ultimately found guilty of the

    aggravated murder of Huffman under R.C. 2903.01, and he was sentenced to life in

    prison.

          {¶4}. Appellant thereafter filed a direct appeal to this Court, raising eight

    Assignments of Error. On August 8, 1994, this Court overruled all of his assigned

    errors and affirmed his conviction and sentence. See State v. Bocook, 5th Dist.

    Muskingum No. CT93-47, 1994 WL 476405.1

          {¶5}. In January 1996, appellant filed a petition for post-conviction relief in the

    trial court. The State of Ohio thereupon filed a response and a motion for summary

    judgment. Via a judgment entry issued March 1, 1996, appellant's post-conviction

    petition was denied by the trial court. Appellant appealed said decision to this Court.

    However, on September 25, 1996, we affirmed the trial court's denial of post-conviction



1  Some eight years later, appellant unsuccessfully sought a delayed appeal of our
decision to the Ohio Supreme Court. See State v. Bocook, 97 Ohio St.3d 1460, 778
N.E.2d 1051 (Table), 2002-Ohio-6248.
Muskingum County, Case No. CT2015-0025                                                  3

relief. See State v. Bocook, 5th Dist. Muskingum No. CT96-0017, 93-47, 1996 WL

570949. The Ohio Supreme Court, on January 15, 1997, declined jurisdiction to hear

appellant's appeal of our decision. See State v. Bocook, 77 Ohio St.3d 1519, 674

N.E.2d 372 (Table).

      {¶6}. On November 9, 2011, appellant filed a "motion to void judgment" in the

trial court. The trial court denied same on November 15, 2011. Appellant then filed an

appeal to this Court; however, we dismissed the appeal on procedural grounds on

January 30, 2012 under appellate case number CT2011-0067.

      {¶7}. On March 30, 2015, appellant again filed a petition for post-conviction

relief. On April 27, 2015, the State of Ohio filed a memorandum in opposition to the

petition.

      {¶8}. The trial court denied appellant's post-conviction petition on April 29, 2015.

Appellant filed a "reply brief" on May 7, 2015, subsequent to the aforesaid decision of

the trial court.

      {¶9}. May 18, 2015, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

      {¶10}. “I.    THE     TRIAL     COURT    ERRED      TO   THE     PREJUDICE      OF

DEFENDANT/APPELLANT WHEN THE COURT ABUSED ITS DISCRETION.

      {¶11}. “II.     THE   TRIAL     COURT    ERRED      TO   THE     PREJUDICE      OF

DEFENDANT/APPELLANT WHEN THE COURT DISMISSED THE PETITIONER'S

PETITION FOR POST-CONVICTION RELIEF FOR INEFFECTIVE ASSISTANCE OF

COUNSEL.”

      {¶12}. We will address appellant's assigned errors out of sequence.
Muskingum County, Case No. CT2015-0025                                                    4


                                                II.

      {¶13}. In his Second Assignment of Error, appellant argues the trial court erred

by denying his petition for post-conviction relief. We disagree.

      {¶14}. As an initial matter, we note the pertinent jurisdictional time requirements

for a post-conviction petition are set forth in R.C. 2953.21(A)(2) as follows: “Except as

otherwise provided in section 2953.23 of the Revised Code, a petition under division

(A)(1) of this section 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 or adjudication ***.        If no appeal is taken, except as

otherwise provided in section 2953.23 of the Revised Code, the petition shall be filed

no later than three hundred sixty-five days after the expiration of the time for filing the

appeal.”

      {¶15}. In order for a trial court to recognize an untimely or successive post-

conviction petition, pursuant to R.C. 2953.23(A)(1), both of the following requirements

must apply:

      {¶16}. “(a) Either the petitioner shows that the petitioner was unavoidably

prevented from discovery of the facts upon which the petitioner must rely to present the

claim for relief, or, subsequent to the period prescribed in division (A)(2) of section

2953.21 of the Revised Code or to the filing of an earlier petition, the United States

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

persons in the petitioner's situation, and the petition asserts a claim based on that right.
Muskingum County, Case No. CT2015-0025                                                    5


      {¶17}. “(b) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the petitioner

guilty of the offense of which the petitioner was convicted * * *.”

      {¶18}. In the case sub judice, although his petition is facially untimely, appellant's

present basis for post-conviction relief is that the State purportedly indicated it would

have been amenable to a plea deal for a six-year sentence during a break in the 1993

trial. Appellant's brief and the affidavits of appellant's relatives, attached to his 2015

PCR petition, suggest that this discussion occurred outside of the courtroom, and the

information was only recently confirmed by appellant via a telephone conversation with

Connie J. Bocook Huffman.

      {¶19}. We recognize that ineffective assistance of counsel may extend to

situations where trial counsel fails to notify a defendant of the terms of a plea offer,

assuming the plea deal can be shown to be one which the trial court would most likely

have accepted. See State v. Sands, 11th Dist. Lake No. 2012–L–096, 2013-Ohio-2822,

¶ 20 (additional citations omitted). However, a court has no jurisdiction to hear an

untimely petition for post-conviction relief unless the movant meets the requirements in

R.C. 2953.23(A). State v. Demastry, Fairfield App. No. 05CA14, 2005-Ohio-4962, ¶ 15.

In the present matter, we find appellant completely fails to articulate how he was

"unavoidably prevented" from obtaining information about the claimed plea offer for

more than two decades. See R.C. 2953.23(A)(1)(a), supra. Furthermore, we find it

questionable that the “constitutional error at trial” criterion of R.C. 2953.23(A)(1)(b) can

be met for an untimely petition where a defendant is challenging defense counsel's
Muskingum County, Case No. CT2015-0025                                                 6


handling of a purported plea opportunity, as opposed to counsel's performance before

the jury or the factfinder.

      {¶20}. Accordingly, appellant's Second Assignment of Error is overruled.

                                                I.

      {¶21}. In his First Assignment of Error, appellant chiefly contends the trial court

abused its discretion in denying him a hearing on his post-conviction petition. We

disagree.

      {¶22}. A trial court's decision regarding whether or not to conduct an evidentiary

hearing in post-conviction matters is governed by the standard of abuse of discretion.

State ex rel. Richard v. Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134.

Based on our above analysis, we find no abuse of discretion in the trial court's decision

to rule on the petition without holding a hearing.

      {¶23}. Appellant adds the argument that he was not afforded time to file a reply in

the trial court to the State's memorandum in opposition to his petition. While we note

R.C. 2953.21(D) allows the State to file a response "by answer or motion," the statute

is silent as to allowing a defendant to file a reply memorandum, and appellant cites no

local rules on the issue.
Muskingum County, Case No. CT2015-0025                                               7


      {¶24}. Appellant's First Assignment of Error is therefore overruled.

      {¶25}. For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.


By: Wise, P. J.

Delaney, J, and

Baldwin, J., concur.




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