[Cite as In re J.P., 2013-Ohio-1007.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




IN THE MATTER OF:
                                                            CASE NO. 5-12-31
        J.P.,
                                                            OPINION
ALLEGED DELINQUENT CHILD.




                 Appeal from Hancock County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 20420733

                                        Judgment Affirmed

                             Date of Decision: March 18, 2013




APPEARANCES:

        Charles R. Hall, Jr. for Appellant

        Mark C. Miller and Rebecca S. Newman for Appellee
Case No. 5-12-31


SHAW, J.

       {¶1} Appellant J.P. appeals the September 12, 2012, judgment of the

Hancock County Court of Common Pleas, Juvenile Division, dismissing his

petition for post-conviction relief. For the reasons that follow, we affirm the

judgment of the trial court.

       {¶2} On November 23, 2004, J.P. was charged with being Delinquent

pursuant to R.C. 2152.02 and Rape pursuant to R.C. 2907.02(A)(1)(b). (Doc. 1).

The charges arose out of an incident wherein J.P., who was ten years old at the

time, “plac[ed] his penis in his four-year old female cousin’s mouth, vaginal area,

and anal area.” (Doc. 81).

       {¶3} On November 30, 2004, J.P.’s case was transferred from Seneca

County Juvenile Court to the Hancock County Juvenile Court.

       {¶4} On March 8, 2005, the Hancock County Juvenile Court held an

Adjudication Hearing for J.P. (Doc. 11).       At the hearing, J.P. withdrew his

previously entered plea of “deny” and changed his plea to “admit.”            (Id.)

Subsequently, the court found J.P. to be a Delinquent Child under R.C. 2152.02,

and Rape, a felony in the first degree, under R.C. 2907.02(A)(1). (Id.)

       {¶5} Also on March 8, 2005, the trial court held a Disposition Hearing.

Ultimately the court committed J.P. to the Ohio Department of Youth Services for

a minimum of one year, but the commitment was suspended on certain probation


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conditions.       On March 9, 2005, the trial court filed an entry reflecting the

adjudication and disposition. (Doc. 11).

         {¶6} On December 17, 2011, J.P. turned 18 years old.1 (Doc. 81). On

January 11, 2012, J.P. was released from probation and the probation was

terminated. (Id.)

         {¶7} On February 28, 2012, J.P. filed a “Motion for Post-Conviction Relief

and Request for Hearing.” (Doc. 75). In that motion, J.P. argued that R.C.

2907.02(A)(1)(b), as applied to him, was unconstitutional, citing a recent Ohio

Supreme Court case, In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, which

found the statute at issue unconstitutional as applied in that case. (Id.) J.P. also

argued that his counsel was ineffective for failing to make this claim in the trial

court. (Id.)

         {¶8} On March 9, 2012, the State filed a brief in response to J.P.’s motion.

(Doc. 76). On May 10, 2012, J.P. filed a supplemental brief in support of his

motion.      (Doc. 79).        On May 21, 2012, the State filed a response to J.P.’s

supplemental brief. (Doc. 80).

         {¶9} On September 12, 2012, the trial court filed its judgment entry on the

matter dismissing J.P.’s motion. (Doc. 81). In its entry, the trial court found that

J.P.’s Post-Conviction Relief Petition was untimely and that J.P. therefore had to

1
  J.P.’s brief lists his birthday as December 12 rather than December 17. However, in the trial court’s
judgment entry, and in J.P.’s Financial Disclosure Affidavit contained in the record, his birthday is listed as
December 17.

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Case No. 5-12-31


meet the requirements of R.C. 2953.23 to be considered. (Id.) The trial court then

found that J.P.’s motion did not meet the requirements of R.C. 2953.23, and that

J.P.’s counsel was not ineffective. (Id.)

       {¶10} It is from this judgment that J.P. appeals, asserting the following

assignment of error for our review.

                   ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
       DEFENDANT WHEN IT WOULD NOT GRANT HIS
       MOTION FOR POST-CONVICTION RELIEF.

       {¶11} In his assignment of error, J.P. argues that the trial court erred in

dismissing his petition for post-conviction relief. Specifically, J.P. argues that

R.C. 2907.02(A)(1)(b) is unconstitutional as applied to him, and that his counsel

was ineffective for failing to make this claim to the trial court.

       {¶12} A petition for post-conviction relief must “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 * * *.” R.C.2953.21(A)(2). However, if no direct

appeal is taken, the petition must be filed within one hundred eighty days after the

expiration of the time for the filing of the direct appeal. Id. If a defendant fails to

file a timely petition for post-conviction relief, the trial court may not consider the

motion unless one of the two exceptions is met in R.C. 2953.23(A).

       {¶13} In this case, J.P. never filed a direct appeal and did not file a timely

post-conviction relief petition as this petition was filed over six years after the

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Case No. 5-12-31


judgment against J.P. Thus in order for J.P. to be able to collaterally attack his

conviction J.P. must meet the guidelines of R.C. 2953.23(A)(1).2

        {¶14} R.C. 2953.23(A)(1) reads,

        (A) Whether a hearing is or is not held on a petition filed
        pursuant to section 2953.21 of the Revised Code, a court may not
        entertain a petition filed after the expiration of the period
        prescribed in division (A) of that section or a second petition or
        successive petitions for similar relief on behalf of a petitioner
        unless division (A)(1) or (2) of this section applies:

        (1) Both of the following apply:

        (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.

(Emphasis Added.)

        {¶15} In his motion for post-conviction relief, J.P. does not allege any new

factual evidence in his case, but he claims that a new right was effectively

2
 J.P. could also meet the guidelines required under R.C. 2953.23(A)(2); however, subsection (A)(2) deals
with DNA evidence and is neither relevant to this case nor asserted by J.P. and therefore it will not be
discussed.

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Case No. 5-12-31


recognized by the Ohio Supreme Court in In re D.B., 129 Ohio St.3d 104, 2011-

Ohio-2671. In that case, the Ohio Supreme Court ultimately held that it was

unconstitutional to charge an individual who is under thirteen with engaging in

sexual conduct with an individual under thirteen in violation of R.C.

2907.02(A)(1)(b). J.P. claims that this Ohio Supreme Court case establishes that

in his case, just as in In re D.B., he should not have been charged with rape

pursuant to that statute as it was unconstitutional as applied to him.

       {¶16} However, despite J.P.’s arguments, his claim fails to satisfy R.C.

2953.23(A)(1) for multiple reasons, making it proper for the trial court to dismiss

his petition. First, R.C. 2953.23(A)(1)(a) requires that the petitioner present new

“facts” that he was prevented from discovering, rather than new “law.” State v.

Williamitis, 2d Dist. No. 21321, 2006-Ohio-2904, ¶ 18; State v. Herring, 7th Dist.

No. 06 JE 8, 2007-Ohio-3174, ¶ 26. “The purpose behind R.C. 2953.23 is to

‘permit trial courts to consider factual information that may come to light after a

defendant’s trial, not to permit defendants to advance new legal theories using the

same underlying facts.’” Herring, supra, at ¶ 26 quoting State v. Hurst, 5th Dist.

Stark App. No. 1999CA00171 (Jan. 10, 2000). Here, J.P. is not alleging any new

fact; he is merely asserting that the statutory provision he was charged with was

later determined to be unconstitutional in a specific set of circumstances. Thus




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Case No. 5-12-31


J.P. asserts no new facts to satisfy the statute and cannot claim that he was

prevented from discovering any “fact” in his case to satisfy R.C. 2953.23(A)(1)(a).

          {¶17} Second, in the absence of a newly discovered fact, R.C.

2953.23(A)(1)(a) very clearly requires a new “right” to be recognized by the

“United States Supreme Court.” Herring, supra, ¶ 28. A decision by the Ohio

Supreme Court has been found not to satisfy this provision. Id. Here, the case J.P.

relies upon is not a United States Supreme Court decision, but a decision of the

Ohio Supreme Court. Thus J.P. would not meet this requirement of the statute

either.

          {¶18} Third, and finally, even if there was a specific “right” created or

recognized in the In re D.B. decision, and even if the Ohio Supreme Court

decision served to satisfy R.C. 2953.23(A)(1)(a) in place of the United States

Supreme Court, there is no indication that In re D.B. was to have retroactive effect

on other court decisions that were long since final.

          {¶19} Thus for all of these reasons together, J.P.’s claim completely fails

the first prong of R.C. 2953.23(A)(1). Accordingly, we need not reach the second

prong of R.C. 2953.23(A)(1) as J.P. is utterly incapable of meeting the first prong.

We further find that since J.P. failed to satisfy R.C. 2953.23(A), the trial court

properly dismissed J.P.’s petition, which includes his claim for ineffective

assistance of counsel.


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Case No. 5-12-31


       {¶20} For the foregoing reasons, J.P.’s assignment of error is overruled and

the judgment of the Hancock County Court of Common Pleas, Juvenile Division,

is affirmed.

                                                              Judgment Affirmed

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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