[Cite as State v. Baskerville, 2019-Ohio-3639.]


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

STATE OF OHIO                                          C.A. No.     29327

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DEANDRE BASKERVILLE                                    COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR-2015-10-3270

                                  DECISION AND JOURNAL ENTRY

Dated: September 11, 2019



        CALLAHAN, Judge.

        {¶1}     Appellant, Deandre Baskerville, appeals an order of the Summit County Court of

Common Pleas that dismissed his petition for postconviction relief and denied his untimely

motion for a new trial. This Court affirms.

                                                  I.

        {¶2}     In 2016, a jury found Mr. Baskerville guilty of two charges of murder, one charge

of felonious assault, and one charge of carrying a concealed weapon. The trial court sentenced

him to a prison term of fifteen years to life. Mr. Baskerville appealed, and this Court affirmed

his convictions.      State v. Baskerville, 9th Dist. Summit No. 28148, 2017-Ohio-4050.       On

November 27, 2018, Mr. Baskerville filed a “Motion to Vacate Convi[c]tion, Set Aside

Sentence, and Motion For a New Trial,” in which he argued that he received ineffective

assistance of counsel and that newspaper articles regarding another crime that were published
                                                  2


after he was sentenced demonstrated that he was selectively prosecuted. The trial court denied

his motions, and Mr. Baskerville filed this appeal.

                                                 I.

                                  ASSIGNMENT OF ERROR

       APPELLANT WAS WRONGFULLY CONVICTED, THUS DEPRIVING HIM
       OF HIS RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE
       LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH
       AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
       ARTICLE 1 SECTION 16 OF THE OHIO CONSTITUTION BECAUSE THE
       STATE’S PROSECUTION’S SELECTIVE AND DISCRIMINATORY
       SELECTION OF MR. BASKERVILLE FOR PROSECUTION WAS
       INVIDIOUS BASED ON HIS RACE.

       {¶3}    Mr. Baskerville’s assignment of error argues that the trial court erred by denying

his post-sentence motion. This Court disagrees.

       {¶4}    R.C. 2953.21(A)(1)(a) provides:

       Any person who has been convicted of a criminal offense or adjudicated a
       delinquent child and who claims that there was such a denial or infringement of
       the person’s rights as to render the judgment void or voidable under the Ohio
       Constitution or the Constitution of the United States * * * may file a petition in
       the court that imposed sentence, stating the grounds for relief relied upon, and
       asking the court to vacate or set aside the judgment or sentence or to grant other
       appropriate relief.

Mr. Baskerville filed his petition on November 27, 2018, so the current version of the

postconviction statutes applies in this case. See State v. Stephens, 9th Dist. Summit No. 27957,

2016-Ohio-4942, ¶ 6. See also State v. McManaway, 4th Dist. Hocking No. 16CA8, 2016-Ohio-

7470, ¶ 11 (explaining that “the triggering event is the filing of the postconviction petition,

which determines the applicable version of the statute.”).

       {¶5}    R.C. 2953.21(A)(2) provides that a petition for postconviction relief must be filed

within 365 days of the date on which the transcript is filed in a direct appeal or, if no direct

appeal is taken, within 365 days of the expiration of the time for filing an appeal. A trial court
                                                   3


may only entertain an untimely petition when the requirements of both R.C. 2953.21(A)(1)(a)

and (A)(1)(b) are met. R.C. 2953.23(A). According to the first requirement, a petitioner must

show:

        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.

R.C. 2953.23(A)(1)(a). To establish that a trial court has jurisdiction to consider an untimely

petition, a petitioner, other than one who challenges a sentence of death, must also demonstrate

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.” R.C. 2953.23(A)(1)(b). A trial court does not have jurisdiction to hear an untimely

petition for postconviction relief unless both of the requirements of R.C. 2953.23(A) are met.

R.C. 2953.23(A); State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9.

        {¶6}    Mr. Baskerville’s sentencing entry was dated February 9, 2016. The transcript in

his direct appeal was filed on July 14, 2016, so under R.C. 2953.21(A)(2), he had until July 14,

2017, to petition for postconviction relief. Mr. Baskerville filed his petition on November 27,

2018, more than one year after that deadline passed. He did not demonstrate by clear and

convincing evidence that the requirements of R.C. 2953.23(A)(1) were met, and consequently,

the trial court did not have jurisdiction to entertain his untimely petition. See Daniel at ¶ 9. The

trial court did not err by dismissing his petition on that basis.

        {¶7}    The trial also did not err by denying his motion for a new trial.        This Court

reviews a trial court’s decision to deny a motion for a new trial for an abuse of discretion. State

v. McQuistan, 9th Dist. Medina No. 17CA0007-M, 2018-Ohio-539, ¶ 42. A defendant who
                                                 4


seeks to file a motion for a new trial outside the timeframe provided by Crim R. 33(B) must first

obtain leave by filing a motion demonstrating that he was unavoidably prevented from filing the

motion for a new trial or, in the case of a motion premised on newly discovered evidence, that he

was “unavoidably prevented from the discovery of the evidence upon which he must rely.”

Crim.R. 33(B). As this Court has explained,

       “[A] two step process is anticipated when the motion is made outside the period
       during which motions for a new trial are permitted as a matter of course. There
       will be an initial step that results in the issuance of an order from the court that
       there was an unavoidable delay. Within seven days after that order, the motion
       for a new trial must be made. Crim.R. 33 does not specify the procedure by
       which the initial order is to be obtained.”

(Alteration in original.) State v. Georgekopoulos, 9th Dist. Summit No. 21952, 2004-Ohio-5197,

¶ 7, quoting State v. Dawson, 9th Dist. Summit No. 19179, 1999 WL 492600, *2. See also State

v. Calise, 9th Dist. Summit No. 26027, 2012-Ohio-4797, ¶ 75; State v. Cleveland, 9th Dist.

Lorain No. 08CA009406, 2009-Ohio-397, ¶ 49.

       {¶8}   Mr. Baskerville did not obtain leave to file his untimely motion for a new trial by

filing a motion demonstrating that he was unavoidably prevented from filing within the fourteen-

day time period applicable to motions filed under Crim.R. 33(A)(1)-(5) or, to the extent that his

motion relied on newly discovered evidence, that he was unavoidably prevented from the

discovery of any such evidence. See Dawson at *2. The trial court did not abuse its discretion

by denying his untimely motion on this basis.

       {¶9}   Mr. Baskerville’s assignment of error is overruled.

                                                III.

       {¶10} Mr. Baskerville’s assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.
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       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



TEODOSIO, P. J.
CARR, J.
CONCUR.


APPEARANCES:

DEANDRE J. BASKERVILLE, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
