[Cite as State v. Crosby, 2017-Ohio-8349.]


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

STATE OF OHIO                                         C.A. No.       16CA011019

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DONZELLE CROSBY                                       COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   11CR082579

                                 DECISION AND JOURNAL ENTRY

Dated: October 30, 2017



        CALLAHAN, Judge.

        {¶1}     Appellant, Donzelle Crosby, appeals from the judgment of the Lorain County

Court of Common Pleas which denied his petition for post-conviction relief. This Court affirms.

                                                 I.

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

direct appeal. See State v. Crosby, 9th Dist. Lorain No. 15CA010724, 2015-Ohio-5176, ¶ 2-3.

Mr. Crosby appealed from his convictions arguing that his convictions were based on insufficient

evidence and against the manifest weight of the evidence because of contradictions in the

testimony of the witnesses, because his trial counsel were ineffective for failing to object to

Bruton evidence, hearsay evidence, and witness bolstering, and because the court erred in not

ordering a new competency evaluation. Id. at ¶ 4, 7, 13, 21-23, 25. This Court overruled Mr.

Crosby’s assignments of error and affirmed his convictions. Id. at ¶ 29.
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       {¶3}    On March 16, 2016, Mr. Crosby filed a petition in the trial court to vacate or set

aside his convictions, in which he argued that attorney Jack Bradley was ineffective when he

terminated his representation of Mr. Crosby to represent a co-defendant, who ultimately testified

against Mr. Crosby. He also argued that his trial counsel were ineffective in not raising Mr.

Bradley’s alleged conflict, the State of Ohio denied him due process (or alternatively committed

prosecutorial misconduct) when it entered into a plea bargain with the co-defendant and allowed

him to testify, and the trial court denied him the right to effective assistance of counsel when it

failed to order a hearing on the “sufficiently apparent” conflict.

       {¶4}    The trial court denied Mr. Crosby’s petition in a one paragraph journal entry dated

August 23, 2016. Mr. Crosby filed a notice of appeal from this entry, and he now presents the

four identical issues raised in his post-conviction petition as assignments of error for this Court’s

review. The assignments of error have been consolidated to facilitate this Court’s discussion.

                                                 II.

                                  ASSIGNMENT OF ERROR I

       ATTORNEY JACK BRADLEY COMMITTED INEFFECTIVE ASSISTANCE
       OF COUNSEL WHEN HE TERMINATED REPRESENTATION WITH [MR.
       CROSBY], A CURRENT CLIENT, TO REPRESENT JEREMY BROWN, A
       CO-DEFENDANT (NEVER REPRESENTED BY ATTORNEY BRADLEY) IN
       THIS AGGRAVATED MURDER PROSECUTION. JEREMY BROWN WAS
       ONE OF THE PRIMARY EVIDENTIARY WITNESSES AGAINST [MR.
       CROSBY].

                                 ASSIGNMENT OF ERROR II

       TRIAL COUNSEL WAS INEFFECTIVE WHEN IT FAILED TO RAISE THE
       ISSUE OF A CONFLICT OF INTEREST WHEN FACED WITH JEREMY
       BROWN TESTIFYING AGAINST [MR. CROSBY].

                                 ASSIGNMENT OF ERROR III

       THE STATE OF OHIO DENIED [MR. CROSBY] DUE PROCESS RIGHTS OR
       ALTERNATIVELY COMMITTED PROSECUTOR MISCONDUCT WHEN IT
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       ALLOWED [MR.] BROWN TO TESTIFY AGAINST [MR. CROSBY]
       KNOWING THAT CONFLICTS OF INTEREST WERE PRESENT WHEN
       DEVELOPING THE PLEA AGREEMENT WITH JEREMY BROWN AND
       [MR. CROSBY].

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT DENIED [MR. CROSBY] THE RIGHT TO EFFECTIVE
       ASSISTANCE OF COUNSEL BECAUSE IT WAS SUFFICIENTLY
       APPARENT [TO] THE COURT THAT [A] CONFLICT OF INTEREST
       HEARING SHOULD HAVE BEEN ORDERED.

       {¶5}    Mr. Crosby’s four assignments of error are restatements of his arguments

contained in his post-conviction relief petition. However, it is unnecessary to reach the merits of

these assignments of error because Mr. Crosby’s petition was untimely filed.

       {¶6}    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.

       {¶7}    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, R.C.

2953.21(A)(2) provides in pertinent part:

       [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 * * *.

Prior to the amendment of R.C. 2953.21(A)(2) on March 23, 2015, the timeframe for filing post-

conviction relief petitions was 180 days. See State v. Herzberger, 9th Dist. Lorain No.

16CA010899, 2017-Ohio-491, ¶ 8, fn. 1, quoting State v. Cunningham, 3d Dist. Allen No. 1-15-
                                                    4


61, 2016-Ohio-3106, ¶ 12, fn. 2, quoting State v. Worthington, 12th Dist. Brown No. CA2014-

12-022, 2015-Ohio-3173, ¶ 43, fn. 4. The applicable filing period is determined by the date the

petition is filed. See Cunningham at ¶ 12, fn. 2.

        {¶8}      In Mr. Crosby’s direct appeal, the trial transcript was filed with this Court on

March 16, 2015. The amendment of R.C. 2953.21, one week later, extended Mr. Crosby’s

deadline to file a petition for post-conviction relief from 180 days to 365 days. Thus, the deadline

for Mr. Crosby to file his post-conviction relief petition was March 15, 2016.1 However, Mr.

Crosby filed his petition on March 16, 2016, 1 day late. Consequently, Mr. Crosby’s petition was

untimely filed.

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

conviction relief unless the petitioner establishes the factors contained in either R.C.

2953.23(A)(1) or (2), which permit a late filing. Herzberger at ¶ 8. In his petition, Mr. Crosby

argued, albeit incorrectly, that the petition was timely filed. While he cited the correct statute and

timeframe for filing, he miscalculated the expiration of the 365-day period.                Apparently

believing his petition was timely, Mr. Crosby did not assert any arguments to permit a late filing.

        {¶10} Because Mr. Crosby filed an untimely petition for post-conviction relief and

failed to demonstrate the statutory factors to permit a late filing, the trial court lacked authority to

consider the petition. Accordingly, the trial court did not abuse its discretion in denying Mr.

Crosby’s petition and Mr. Crosby’s assignments of error are overruled.




1
 Because 2016 was a leap year, the filing deadline for the petition was March 15, 2016 and not
March 16, 2016.
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                                                III.

       {¶11} Mr. Crosby’s assignments of error are overruled. The judgment of the Lorain

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 Lorain, 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.
TEODOSIO, J.
CONCUR.
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APPEARANCES:

DONZELLE CROSBY, Appellant, pro se.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
