[Cite as State v. Franks, 2017-Ohio-7045.]


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

STATE OF OHIO                                           C.A. No.    28533

        Appellee

        v.                                              APPEAL FROM JUDGMENT
                                                        ENTERED IN THE
JERRY FRANKS                                            COURT OF COMMON PLEAS
                                                        COUNTY OF SUMMIT, OHIO
        Appellant                                       CASE No.   CR 1996-08-2041 (B)

                                 DECISION AND JOURNAL ENTRY

Dated: August 2, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, Jerry Franks, appeals the trial court’s denial of his second delayed

petition for post-conviction relief. This Court affirms.

                                                I.

        {¶2}     The facts and initial procedural history of this case were set out in Mr. Franks’

direct appeal. See State v. Franks, 9th Dist. Summit No. 18767, 1998 WL 696777, *1-2 (Oct. 7,

1998). After this Court reversed the portion of the judgment relating to the aggravating

circumstance specification, Mr. Franks was ultimately sentenced to twenty-three years to life on

February 3, 1999. On March 22, 2001, Mr. Franks filed a pro se delayed petition for post-

conviction relief, in which he claimed that he was in possession of newly discovered evidence

that was indicative of a Brady violation. The trial court denied the petition without a hearing and

Mr. Franks did not appeal the trial court’s decision.
                                                2


         {¶3}   On October 25, 2016, Mr. Franks filed a second delayed petition for post-

conviction relief. In this delayed petition, Mr. Franks again argued that he was denied his due

process rights under Brady v. Maryland, 373 U.S. 83 (1963), because the prosecutor withheld

exculpatory ballistics evidence and ballistics reports and findings. Mr. Franks also argued his

trial counsel was ineffective in failing to properly investigate, and it was counsel’s deficient

performance that allowed the prosecution to withhold favorable material and impeachment

evidence.

         {¶4}   Finally, Mr. Franks argued that the United States Supreme Court recognized new

federal and state rights in state post-conviction relief procedures which apply retroactively,

including the retroactive application of Crawford v. Washington, 541 U.S. 36 (2004).

         {¶5}   The trial court again denied Mr. Franks’ petition without a hearing, concluding

that Mr. Franks failed to comply with R.C. 2953.23(A)(1) and it, therefore, lacked jurisdiction to

consider the petition. Mr. Franks appeals, raising four assignments of error, each of which

contend that the trial court erred by dismissing his petition for post-conviction relief without a

hearing. For ease of analysis, this Court will address Mr. Franks’ assignments of error out of

order.

                                               II.

                              ASSIGNMENT OF ERROR NO. 1

         THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION
         VIOLATING THE SUPREMACY, DUE PROCESS AND EQUAL
         PROTECTION CLAUSES, U.S. CONSTITUTION, DENYING THE DELAYED
         PETITION              FOR          POST-CONVICTION        RELIEF
         ([]R[.]C[.][]2953.23(A)(1)(a)&(b)) WITHOUT    A    HEARING   ON
         JURISDICTIONAL GROUNDS BY REFUSING TO ACCEPT THAT
         MARTINEZ V. RYAN, AS EXTENDED IN TR[E]VINO V. THALER, AND
         MADE BINDING BY MONTGOMERY V. LOUISIANA, RECOGNIZED NEW
         FEDERAL AND STATE RIGHTS IN STATE POST-CONVICTION RELIEF
         PROCEDURES THAT ARE THE EQUIVALENT AND ON THE SAME
                                                 3


       FOOTING WITH THE RIGHTS ASSOCIATED WITH A DIRECT APPEAL
       THAT APPLIES RETROACTIVELY. (Emphasis deleted.)

                              ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION
       VIOLATING THE SUPREMACY, DUE PROCESS AND EQUAL
       PROTECTION CLAUSES, U.S. CONSTITUTION, DENYING THE DELAYED
       PETITION              FOR          POST-CONVICTION        RELIEF
       ([]R[.]C[.][]2953.23(A)(1)(a)&(b)) WITHOUT    A    HEARING   ON
       JURISDICTIONAL GROUNDS IN AN OBJECTIVELY UNREASONABLE
       MANNER BY REFUSING TO ACCEPT CRAWFORD V. WASHINGTON
       WAS MADE RETROACTIVE THROUGH DANFORTH V. MINNESOTA; TO
       WHICH WAS ALSO AFFECTED BY MONTGOMERY V. LOUISIANA
       CONCERNING THE NEW RETROACTIVE CONSTITUTIONAL RIGHTS IN
       STATE POST-CONVICTION PROCEDURE COMBINED WITH THE STATE
       COURT’S DUTY TO ENFORCE THE SUPREME FEDERAL LAW IN THE
       COLLATERAL PROCEEDINGS. (Emphasis deleted.)

       {¶6}    In his first assignment of error, Mr. Franks contends that “Martinez v. Ryan, as

extended in Tr[e]vino v. Thaler, and made binding by [] Montgomery v. Louisiana, recognized

new federal and state rights in [] [s]tate post-conviction relief procedures.” (Emphasis deleted.)

In his fourth assignment of error, Mr. Franks argues that “Crawford v. Washington was made

retroactive [] through Danforth v. Minnesota” and applied to his case. (Emphasis deleted.)

       {¶7}    The decision to grant or deny a petition for post-conviction relief is committed to

the discretion of the trial court. State v. Glynn, 9th Dist. Medina No. 02CA0090-M, 2003-Ohio-

1799, ¶ 4. Therefore, this Court will not disturb the decision of a trial court regarding a petition

for post-conviction relief absent an abuse of discretion. Id. An abuse of discretion is more than

an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). It arises

where the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Id.

       {¶8}    R.C. 2953.21 sets forth the statutory framework governing post-conviction relief,

and imposes time limits for the filing of petitions seeking such relief. Specifically, former R.C.

2953.21(A)(2), in effect at the time of Mr. Franks’ conviction, provided that:
                                                   4


         A petition [for post-conviction relief] shall be filed no later than one hundred
         eighty 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 * * *[.] If no appeal is
         taken, the petition shall be filed no later than one hundred eighty days after the
         expiration of the time for filing the appeal.1

         {¶9}    The trial transcript for Mr. Franks’ direct appeal was filed with this Court on

February 17, 1998. Mr. Franks’ second delayed petition is years beyond the window provided by

former R.C. 2953.21(A)(2).

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

conviction relief unless the petitioner establishes both of the following subsections:

          (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.

          (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 or, if the
              claim challenges a sentence of death that, but for constitutional error at the
              sentencing hearing, no reasonable factfinder would have found the petitioner
              eligible for the death sentence.

R.C. 2953.23(A)(1)(a)-(b); State v. Sprenz, 9th Dist. Summit No. 22433, 2005-Ohio-1491, ¶ 8.

While R.C. 2953.23(A)(1)(a) allows for a petitioner to assert that he was either unavoidably

prevented from discovery of the facts upon which he relies or that the United States Supreme

Court recognized a new federal or state right that applies retroactively, those assertions must be

made in addition to the clear and convincing evidence requirement of subsection (b).




1
    The current version of R.C. 2953.21(A)(2) allows 365 days.
                                                 5


       {¶11} To circumvent the statutory window during which he could have timely filed his

petition, Mr. Franks sets forth arguments addressing both prongs under section R.C.

2953.23(A)(1)(a).

       {¶12} Initially, this Court notes that Mr. Franks raises an ineffective assistance of

counsel argument within the body of his brief. “This Court will not address underdeveloped

arguments that an appellant fails to separately assign as error.” See State v. Miller, 9th Dist.

Summit No. 25200, 2010-Ohio-3580, ¶ 7, citing Ulrich v. Mercedes–Benz USA, L.L.C., 9th Dist.

Summit No. 24740, 2010-Ohio-348, ¶ 24.

       {¶13} Regarding his first assignment of error, it has already been recognized that “‘the

Supreme Court has not determined that Martinez announced a new rule that should be

retroactively available to cases on collateral review.’” State v. Russell, 10th Dist. Franklin No.

16AP-542, 2017-Ohio-2871, ¶ 21, quoting In re Hartman, 6th Cir. No. 12-4255 (Nov. 8, 2012);

see also State v. Stephens, 9th Dist. Summit No. 27957, 2016-Ohio-4942, ¶ 10. “In Martinez, the

United States Supreme Court recognized a ‘narrow exception’ to the rule established in Coleman

v. Thompson, that defendants possess no federal constitutional right to the effective assistance of

counsel in post[-]conviction proceedings.” (Internal citations omitted.) State v. Jackson, 149

Ohio St.3d 55, 2016-Ohio-5488, ¶ 103. “Martinez is directed toward federal habeas proceedings

and is intended to address issues that arise in that context.” Id. at ¶ 104, citing Howell v. State,

109 So.3d 763, 774 (Fla.2013). Thus, “Martinez does not provide a free-standing constitutional

right * * * in post[-]conviction proceedings. Rather, it established an equitable doctrine for

overcoming procedural default in certain limited circumstances.” State v. Glover, 8th Dist.

Cuyahoga Nos. 100330, 100331, 2014-Ohio-3228, ¶ 28. See also State v. Waddy, 10th Dist.

Franklin No. 15AP-397, 2016-Ohio-4911, ¶ 61; Russell at ¶ 22.
                                                  6


       {¶14} Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911 (2013), clarified and extended

the rationale of Martinez. Id. at syllabus. “Trevino, however, ‘does not recognize a constitutional

right to counsel or effective assistance of counsel in post[-]conviction proceedings, nor does it

find any state laws unconstitutional.’” Russell at ¶ 23, quoting State v. Boles, 12th Dist. Brown

No. CA2016-07-014, 2017-Ohio-786, ¶ 30. Thus, what has come to be known as the

Martinez/Trevino rule is just that—a rule. Neither case established a new constitutional right.

       {¶15} As to his fourth assignment of error, this Court need not address whether

“Crawford v. Washington was made retroactive [] through Danforth v. Minnesota” or whether

either case created a constitutional right because Mr. Franks fails to address the requirements of

R.C. 2953.23(A)(1)(b).      (Emphasis deleted.) Mr. Franks fails to direct this Court to any

statements in the trial transcript, as required by App.R. 16(A)(7), and fails to argue that any of

the statements about which he is complaining are hearsay, let alone the types of testimonial

hearsay excluded by Crawford. Nor does Mr. Franks develop an argument explaining how any

alleged Crawford violations rise to the level of constitutional error. And again, Mr. Franks fails

to make any argument, much less one by clear and convincing evidence, that but for the alleged

non-excluded statements, a reasonable factfinder would not have found him guilty.        See R.C.

2953.23(A)(1)(b).

       {¶16} Where an appellant fails to develop an argument in support of his assignment of

error, this Court will not create one for him. See State v. Harmon, 9th Dist. Summit No. 26426,

2013-Ohio-2319, ¶ 6, citing App.R. 16(A)(7) and Cardone v. Cardone, 9th Dist. Summit No.

18349, 1998 WL 224934, *8 (May 6, 1998). “If an argument exists that can support [an]

assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone at *8.
                                                 7


       {¶17} When a party fails to satisfy the requirements for filing an untimely petition, the

trial court does not err by failing to hold an evidentiary hearing before dismissing the petition.

See State v. Luther, 9th Dist. Lorain No. 05CA008770, 2006-Ohio-2280, ¶ 14, citing State v.

Sprenz, 2005-Ohio-1491, at ¶ 15.

       {¶18} Mr. Franks’ first and fourth assignments of error are overruled.

                               ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION
       VIOLATING THE SUPREMACY, DUE PROCESS AND EQUAL
       PROTECTION CLAUSES, U.S. CONSTITUTION, DENYING THE DELAYED
       PETITION              FOR           POST-CONVICTION        RELIEF
       ([]R[.]C[.][]2953.23(A)(1)(a)&(b))  WITHOUT    A    HEARING   ON
       JURISDICTIONAL GROUNDS BY REFUSING TO FIND THE DENIAL OF
       POST-CONVICTION               DISCOVERY      PROCEDURES      ARE
       UNCONSTITUTIONAL IN THE WAKE OF THE TR[E]VINO AND
       MONTGOMERY DECISIONS, AS SUCH PRECLUDES INDIGENT
       UNREPRESENTED PETITIONERS FROM MEANINGFULLY PURSUING
       AND PRESENTING BRADY V. MARYLAND AND STRICKLAND V.
       WASHINGTON CLAIMS THAT ARE BASED UPON WITHHELD
       EXCULPATORY EVIDENCE OUTSIDE THE RECORD THAT IS NEEDED
       TO BE OBTAINED IN ORDER TO MEANINGFULLY PRESENT AND
       SUPPORT THE PETITION IN ACCORDANCE WITH LAW. (Emphasis
       deleted.)

       {¶19} In his second assignment of error, Mr. Franks argues that the trial court erred in

refusing to find that the denial of discovery in post-conviction proceedings is unconstitutional

because it violates the due process and equal protection clauses of the United States Constitution

in that it discriminates against the indigent. This Court disagrees.

       {¶20} This Court has long held that there is no right to discovery in a post-conviction

proceeding. State v. Smith, 9th Dist. Summit No. 24382, 2009-Ohio-1497, ¶ 18. An action for

post-conviction relief is a civil action. State v. Milanovich, 42 Ohio St.2d 46, 49 (1975). R.C.

2953.21 sets forth the procedures applicable to post-conviction relief actions. State v. Hiltbrand,

9th Dist. Summit No. 11550, 1984 WL 6171, *1 (May 16, 1984). That section does not provide
                                                  8


for discovery. See, e.g., State v. Craig, 9th Dist. Summit No. 24580, 2010-Ohio-1169, ¶ 6

(collecting cases).

       {¶21} An appellate court reviews a constitutional challenge de novo. State v. Honey, 9th

Dist. Medina No. 08CA0018-M, 2008-Ohio-4943, ¶ 4. The relevant portion of the Fourteenth

Amendment to the United States Constitution provides that “[n]o State shall * * * deny to any

person within its jurisdiction the equal protection of the laws.”

       {¶22} While identifying who he alleges to be in the suspect class, the indigent, Mr.

Franks fails to develop an argument as to which level of scrutiny should be applied to the

constitutionality analysis and fails to explain how this state’s post-conviction statutes provide

disparate treatment between the indigent and the non-indigent. As previously stated, where an

appellant fails to develop an argument in support of his assignment of error, this Court will not

create one for him. Harmon, 2013-Ohio-2319, at ¶ 6, citing App.R. 16(A)(7) and Cardone, 1998

WL 224934, at *8. “If an argument exists that can support [an] assignment of error, it is not this

[C]ourt’s duty to root it out.” Cardone at *8.

       {¶23} Mr. Frank’s second assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED AND ABUSED JUDICIAL DISCRETION
       VIOLATING THE SUPREMACY, DUE PROCESS AND EQUAL
       PROTECTION CLAUSES, U.S. CONSTITUTION, DENYING THE DELAYED
       PETITION              FOR          POST-CONVICTION        RELIEF
       ([]R[.]C[.][]2953.23(A)(1)(a)&(b)) WITHOUT    A    HEARING   ON
       JURISDICTIONAL GROUNDS WHEN PETITIONER PROVED HE WAS
       MORE THAN “UNAVOIDABLY PREVENTED FROM DISCOVERY OF THE
       FACTS UPON WHICH THE PETITIONER MUST RELY TO PRESENT THE
       CLAIM FOR RELIEF” IN EXCLUSION OF REASONABLE DILIGENCE
       BECAUSE THE EXCULPATORY EVIDENCE IN SUBJECT IS STILL BEING
       WITHHELD TO THIS DATE WITHOUT [THE] MEANS OF ACCESSING
       AND OBTAINING IT, THEREBY PREVENTING ANY ABILITY AT
       EXERCISING         REASONABLE      DILIGENCE  AND    MEANINGFUL
       PRESENTATION THROUGH SUCH AN IMPEDIMENT. (Emphasis deleted.)
                                                9



       {¶24} In his third assignment of error, Mr. Franks argues that the trial Court erred in

denying a hearing on his petition for post-conviction relief because he was “more than”

unavoidably prevented from discovery of certain exculpatory evidence. This Court disagrees.

       {¶25} Mr. Franks claims that he “recently noticed through a review of his co-

defendant’s appellate case [] that ‘two of the bullets recovered from the Garfield Street residence

were fired from [his co-defendant’s] gun’ [] were never turned over to his attorneys in discovery

and are still withheld to this date.” According to the affidavit filed by Mr. Franks in the trial

court, his co-defendant’s appeal was decided by this Court on October 10, 1998.2 Mr. Franks

does not explain how he was unavoidably prevented from obtaining the information he now

claims is exculpable for more than eighteen years.

       {¶26} Because Mr. Franks 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 his petition

and did not err by not holding a hearing. 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. See Luther, 2006-Ohio-2280, at ¶ 14, citing

Sprenz, 2005-Ohio-1491, at ¶ 15.

       {¶27} Mr. Franks’ third assignment of error is overruled.

                                               III.

       {¶28} Mr. Franks’ assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.

2
 This Court’s decision in Mr. Franks’ direct appeal was released the same day, October 7, 1998,
as the decision in his co-defendant’s direct appeal. See Franks, 1998 WL 696777; State v.
Brown, 9th Dist. Summit No. 18766, 1998 WL 696770 (Oct. 7, 1998).
                                                10




       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.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
CONCURS.

CARR, P.
CONCURRING IN JUDGMENT ONLY.

       Franks was convicted nineteen years ago. I concur in judgment on the basis that his

petition is untimely. The United States Supreme Court’s decisions in Martinez v. Ryan, 566 U.S.

1 (2012) and Crawford v. Washington, 541 U.S. 36 (2004) have not been applied retroactively to

offenders in Franks’ situation. As such, Franks has not demonstrated that the United States
                                                 11


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

conviction proceedings. I would affirm solely on the basis that the trial court lacked authority to

entertain Franks’ petition as it was untimely.


APPEARANCES:

JERRY FRANKS, pro se, Appellant.

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