         [Cite as State v. Daniels, 2019-Ohio-3256.]




                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-180176
                                                       TRIAL NO. B-0808717
        Respondent-Appellee,                       :

  vs.                                              :      O P I N I O N.
BARRY DANIELS,                                     :

    Petitioner-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 14, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Respondent-Appellee,

Gloria L. Smith, for Petitioner-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS



CROUSE, Judge.

       {¶1}   Petitioner-appellant Barry Daniels appeals the Hamilton County

Common Pleas Court’s judgment dismissing his petition under R.C. 2953.21 et seq.

for postconviction relief.    We affirm that judgment, because the court lacked

jurisdiction to entertain Daniels’s late postconviction petition.

       {¶2}   In 2009, Daniels was convicted of rape and gross sexual imposition

upon his nine-year-old niece. At trial, the victim testified that on September 17,

2008, after spending the day with Daniels and his nine-year-old daughter Barriesha,

she had received permission from her mother to spend the night with Barriesha at

Daniels’s apartment. The victim and Barriesha settled in together on a pallet on the

floor in Daniels’s living room to watch movies. The victim stated that after Barriesha

had fallen asleep, Daniels had come into the living room, turned off the television,

twice pulled the covers over the girls’ faces, kneeled beside her, “lifted up [her] leg,

and then started rubbing [her] private * * * under [her] underwear,” with his hand

first inside and then, after she told him to stop, outside her vagina, until she curled

into a ball and he returned to his bedroom. The victim stated that the following

morning, she told Barriesha that somebody had touched her the night before, and

that when she got home, she told her mother what had happened.

       {¶3}   The victim’s mother called Daniels to confront him with the allegation.

He claimed that the alleged sexual assault had been a dream; the victim insisted to

her mother that it had not.

       {¶4}   The victim’s mother then reported the matter to the police and took

the victim to the hospital. The victim was interviewed by a social worker. The state

played for the jury a videotape of that interview, during which the victim described

how Daniels had touched her. The victim was also examined by a doctor who was


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                 OHIO FIRST DISTRICT COURT OF APPEALS



qualified at trial as an expert in the treatment and diagnosis of child sexual abuse.

The doctor offered her opinion that abuse was “concerning/probable” in the victim’s

case. And her opinion was not altered by the absence of trauma to the victim’s

genitalia, because “examination findings are normal” in “over 90 percent” of

“substantiated” cases of sexual abuse.

       {¶5}   A police detective investigating the matter interviewed Daniels’s

daughter Barriesha. Before the detective could ask her first question, Barriesha

provided her version of the night’s events, causing the detective to suspect that

Barriesha had been “coached.” The detective’s suspicions prompted her to obtain

records of Daniels’s telephone calls from jail to Barriesha’s mother’s cell phone.

Those conversations were played for the jury at trial.       They included Daniels’s

statements to Barriesha’s mother, during several conversations, that “the most

important thing is [Barriesha’s] testimony, so you need to talk to her * * * and make

sure she understands what she is to say and no more,” and that what she was “going

to have to say” was that the victim had kept Barriesha awake all night with her

“moving” and “kicking” and “[t]hat’s why [Barriesha] remember[ed] seeing me”

“come in there and turn that TV off and went back into my room.” Daniels also

spoke on the phone to Barriesha. He asked her to “[r]emember the night [the victim]

spent the night,” and that the victim “kept kicking you all through the night,” so that

“[you were awake to see] me when I came in there and turned the TV off.” He went

on to ask Barriesha to “remember * * * when [the victim] got up in the morning” and

“she was telling us about a dream she had that somebody had broke in her house * *

* and came in there and picked her leg up and touched her, and then she was scared

they was going to rape her * * *, [b]ut then she woke up and there wasn’t nobody




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                  OHIO FIRST DISTRICT COURT OF APPEALS



there.” Finally, Daniels told Barriesha, “[I]f you don’t remember all that stuff [when

you talk to defense counsel], they’ll probably send me to the penitentiary, okay.”

       {¶6}   Barriesha did not testify at trial. Daniels did. He admitted to a prior

rape conviction. But he denied sexually assaulting the victim, providing a version of

that night’s events substantially similar to the version that he had asked Barriesha to

“remember.” Concerning his instructions to Barriesha and her mother during their

telephone conversations, he denied “coaching” Barriesha, explaining that because he

believed that Barriesha suffered from attention deficit disorder, he had to “parent[]

[her] * * * to keep her mind fresh as to what happened.”

       {¶7}   Daniels unsuccessfully challenged his convictions on direct appeal and

in a motion for a new trial. State v. Daniels, 1st Dist. Hamilton No. C-090566, 2010-

Ohio-5258, ¶ 3-7, appeals not accepted, 128 Ohio St.3d 1412, 2011-Ohio-828, 942

N.E.2d 385; State v. Daniels, 1st Dist. Hamilton No. C-130150 (Nov. 15, 2013),

delayed appeal denied, 138 Ohio St.3d 1431, 2014-Ohio-889, 4 N.E.3d 1049. In

2017, he again challenged his convictions by filing with the common pleas court a

postconviction petition, seeking relief on the ground that his trial counsel had been

ineffective in investigating and presenting his defense. The court dismissed the

petition upon its determination that Daniels had failed to satisfy the R.C. 2953.23

jurisdictional requirements for a late postconviction petition.

       {¶8}   In this appeal, Daniels presents three assignments of error that, read

together, challenge the dismissal of his postconviction petition without an

evidentiary hearing. We overrule the assignments of error.

       {¶9}   Daniels filed his postconviction petition over seven years after the time

prescribed by R.C. 2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes

the jurisdiction of a common pleas court to entertain a late postconviction petition.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



The petitioner must show either that he was unavoidably prevented from discovering

the facts upon which his postconviction claim depends, or that his claim is

predicated upon a new and retrospectively applicable right recognized by the United

States Supreme Court since the time for filing his petition had expired. And he must

show “by clear and convincing evidence that, but for constitutional error at trial, no

reasonable factfinder would have found [him] guilty of the offense of which [he] was

convicted * * *.” R.C. 2953.23(A)(1).

       {¶10} In the sole ground for relief advanced in his petition, Daniels asserted
that his trial counsel had been constitutionally ineffective in failing to “develop[]”

and present at trial exculpatory eyewitness testimony by his daughter.         And he

asserted that he had been unavoidably prevented from discovering the facts upon

which that claim was based, because he was indigent and incarcerated, and because

Barriesha’s mother had refused his request for Barriesha’s affidavit to be notarized,

and Barriesha could not legally sign that affidavit until she turned 18.

       {¶11} Daniels supported his petition with his and Barriesha’s affidavits, in
which they attested to his efforts to secure her testimony, either by subpoena for trial

or by affidavit for postconviction proceedings, and to Barriesha’s mother’s resistance

to those efforts. That resistance, Daniels and Barriesha insisted, was attributable to

her mother’s fear of losing custody of her other children. Daniels averred, “After I

was convicted, I was told that [the police detective who had interviewed Barriesha]

told [Barriesha’s] mother that if she brings [Barriesha] back to court as a witness on

my behalf, the court could take away all of her other children because of my past

record.” And Barriesha averred, “Before leaving [the police detective’s] office, she

told my mother that if she brought me back to court as a witness, the court could take

all of her children away from her because of my dad’s past record.”

       {¶12} But the trial record and Daniels in his affidavit contradict his self-
serving averment that he had been unavoidably prevented from discovering the facts


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                  OHIO FIRST DISTRICT COURT OF APPEALS



upon which his postconviction ineffective-counsel claim depended. He stated in his

affidavit that he had learned of the police detective’s alleged threat sometime “[a]fter

[he] was convicted,” but “years” before he filed his postconviction petition. And the

record shows that he and his counsel knew at the time of trial that Barriesha, in her

police interview, had provided a statement exonerating him in the sexual assault, and

that the police detective had developed a belief that the statement had been

“coached.” See Daniels, 1st Dist. Hamilton No. C-090566, 2010-Ohio-5258, at ¶ 5.

       {¶13} Moreover, in determining whether Daniels had demonstrated
unavoidable prevention, the common pleas court had the discretion to discount the

credibility of the affidavits offered in support of the petition, without first conducting

an evidentiary hearing. In assessing an affidavit’s credibility, and thus determining

the need for a hearing, a court must consider all relevant factors, including (1)

whether the judge reviewing the motion also presided at trial, (2) whether multiple

affidavits contain nearly identical language or otherwise appear to have been drafted

by the same person, (3) whether the affidavit contains or relies on hearsay, (4)

whether the affiant is related to the defendant or otherwise interested in the success

of his postconviction efforts, (5) whether the affidavit contradicts defense evidence,

(6) whether the affidavit is contradicted by any other sworn statement of the affiant,

and (7) whether the affidavit is internally inconsistent. State v. Calhoun, 86 Ohio

St.3d 279, 714 N.E.2d 905 (1999).

       {¶14} As we noted, Daniels’s affidavit was internally inconsistent on the issue
of unavoidable prevention. The allegation concerning the police detective’s threat

was presented in nearly identical language in Barriesha’s and Daniels’s affidavits.

And the manner in which that allegation was phrased in their affidavits suggested

that it relied on hearsay.     Also, Daniels was plainly interested, and Barriesha

admitted in her affidavit her interest, in the success of his postconviction petition.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



Thus, we cannot say that the common pleas court abused its discretion in deciding

the issue of unavoidable prevention without an evidentiary hearing.

       {¶15} The petition and its supporting material did not show that Daniels had
been unavoidably prevented from discovering the facts upon which his

postconviction claim depended.      Therefore, the postconviction statutes did not

confer upon the common pleas court jurisdiction to entertain the petition. See R.C.

2953.23(A)(1). And while a court always has jurisdiction to correct a void judgment,

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d

263, ¶ 18-19, his ineffective-counsel claim, even if demonstrated, would not have

rendered his convictions void. See State v. Hayes, 1st Dist. Hamilton No. C-130450,

2014-Ohio-1263, ¶ 5.

       {¶16} Because the common pleas court had no jurisdiction to entertain
Daniels’s postconviction petition, the petition was subject to dismissal without an

evidentiary hearing. See R.C. 2953.21(D) and 2953.23(A). Accordingly, we affirm

the court’s judgment dismissing the petition.

                                                                   Judgment affirmed.

ZAYAS, P.J., and MYERS, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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