[Cite as State v. Rucker, 2011-Ohio-5007.]


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

STATE OF OHIO                                          C.A. No.        25657

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DEWITT RUCKER                                          COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 2009-01-0047C

                                 DECISION AND JOURNAL ENTRY

Dated: September 30, 2011



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}     A jury convicted DeWitt Rucker of possession of crack cocaine, possession of

cocaine, trafficking in cocaine, having weapons under disability, and possessing criminal tools.

In addition, the judge who presided over his trial found him guilty of a minor misdemeanor

charge of possession of marijuana.            Mr. Rucker appealed, and this Court affirmed his

convictions. He filed a petition for postconviction relief in the trial court 306 days after the

transcript of proceedings was filed in his direct appeal. The trial court dismissed his petition as

untimely.

        {¶2}     Mr. Rucker has appealed, arguing that the trial court failed to review the transcript

of proceedings before it dismissed his petition for postconviction relief and that the trial court

incorrectly determined that he was not unavoidably prevented from discovering the facts

underlying his petition. We affirm because the trial court was not required to review the trial
                                                   2


transcript and Mr. Rucker did not demonstrate that his petition was based on facts that could not

have been discovered within the time period allowed for filing his petition.

                                      UNTIMELY PETITION

        {¶3}    Mr. Rucker’s first assignment of error is that the trial court incorrectly failed to

review the trial transcript before denying his petition as untimely. Specifically, Mr. Rucker has

argued that Section 2953.21(C) of the Ohio Revised Code required the trial court to consider “all

the files and records pertaining to the proceedings against the petitioner, including, but not

limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the

court, and the court reporter’s transcript.”

        {¶4}    The problem with Mr. Rucker’s argument is that he has taken Section 2953.21(C)

of the Ohio Revised Code out of context. The language upon which Mr. Rucker relies describes

what a trial court is required to consider when it decides whether there are substantive grounds

for relief stated in a timely petition. Id. If a trial court decides that a petition is untimely and that

there were no grounds for filing it late, the trial court does not have to make the determination

described in Section 2953.21(C). In this case, the trial court decided that Mr. Rucker’s petition

was untimely, so Section 2953.21(C) of the Ohio Revised Code did not apply. Mr. Rucker’s first

assignment of error is overruled.

        {¶5}    His second assignment of error is that the trial court incorrectly determined that

the evidence upon which his petition was based was either known at the time of trial or could

have been discovered then. Under Section 2953.23(A)(1) of the Ohio Revised Code, a trial court

cannot consider an untimely petition for postconviction relief unless the petitioner demonstrates

“that the petitioner was unavoidably prevented from discovery of the facts upon which the

petitioner must rely to present the claim for relief, or . . . the United States Supreme Court
                                                 3


recognized a new federal or state right that applies retroactively to persons in the petitioner’s

situation[.]” Mr. Rucker supported his petition with the affidavit of Marvin Shepard, a fellow

inmate, and two affidavits from Everitt Whitfield, a witness who testified during his trial but who

now claims that he lied. According to Mr. Rucker’s petition, he “was certainly unavoidably

prevented from discovering” this fact, but he did not explain how he was unavoidably prevented

from doing so until now. See generally State v. Cool, 9th Dist. No. 24518, 2009-Ohio-4333, at

¶13. In fact, one of Mr. Whitfield’s affidavits is dated well within the time limit for filing a

petition for postconviction relief. Mr. Rucker’s second assignment of error is overruled.

                                         CONCLUSION

       {¶6}    Section 2953.21(C) of the Ohio Revised Code did not require the trial court to

consider the trial transcripts before it decided whether Mr. Rucker had cause for filing an

untimely petition for postconviction relief, and Mr. Rucker did not demonstrate how he was

unavoidably prevented from discovering the facts supporting his petition. 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
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period for review shall begin to run. App.R. 22(E). 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.




                                                    CLAIR E. DICKINSON
                                                    FOR THE COURT



WHITMORE, P.J.
MOORE, J.
CONCUR

APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

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