[Cite as State v. Burton, 2017-Ohio-7588.]


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

STATE OF OHIO                                         C.A. No.       28359

          Appellee

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JESSICA C. BURTON aka MICIRE                          COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
          Appellant                                   CASE No.   CR 2009 09 2908

                                 DECISION AND JOURNAL ENTRY

Dated: September 13, 2017



          TEODOSIO, Judge.

          {¶1}   Appellant, Jessica C. Burton, appeals from an order denying her petition for post-

conviction relief by the Summit County Court of Common Pleas. We affirm.

                                                 I.

          {¶2}   In February of 2010, Ms. Burton pled guilty in Summit County Court of Common

Pleas case number CR 2009-09-2908 to operating under the influence of alcohol or drugs

(“OVI”), a felony of the fourth degree. She was charged with a felony due to having three prior

misdemeanor convictions within six years, to wit: two Barberton Municipal Court convictions in

2008 and 2007 and an Akron Municipal Court conviction in 2004. She was sentenced to sixty

days in jail for the felony OVI and placed on two years of community control. She did not

appeal.

          {¶3}   In October of 2015, Ms. Burton was charged with a second felony OVI offense.

After trial counsel in the 2015 case reviewed and discussed the prior felony and misdemeanor
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convictions with Ms. Burton, she filed a petition for post-conviction relief in case number CR

2009-09-2908. She argued that she had never been convicted of a misdemeanor OVI in Akron

Municipal Court in 2004 and that there is no attorney of record listed or waiver of counsel in the

record for that case. Ms. Burton alleged that her twin sister possibly used her identity in the

Akron case. She claimed that she was unavoidably prevented from discovering this information

and that her trial counsel in her 2009 case was ineffective for failing to research and pursue these

issues. The trial court held a hearing and denied the petition.

       {¶4}    Ms. Burton now appeals from the trial court’s order denying her petition for post-

conviction relief and raises three assignments of error for this Court’s review.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED IN FINDING APPELLANT WAS NOT
       UNAVOIDABLY PREVENTED FROM DISCOVERY OF FACTS UPON
       WHICH SHE RELIED IN HER POST-CONVICTION PETITION

       {¶5}    In her first assignment of error, Ms. Burton argues that the trial court erred in not

finding that she was unavoidably prevented from discovering her Akron conviction because trial

counsel in her 2009 case never investigated or discussed her prior convictions with her. We

disagree.

       {¶6}    Generally, “[w]e review a trial court’s decision denying a petition for post-

conviction relief under an abuse of discretion standard.” State v. Daniel, 9th Dist. Summit No.

26670, 2013-Ohio-3510, ¶ 7. Our standard of review is de novo, however, when the trial court

denies a petition solely on the basis of an issue of law. State v. Childs, 9th Dist. Summit No.

25448, 2011-Ohio-913, ¶ 9. “Whether a defendant’s post-conviction relief petition satisfied the

procedural requirements set forth in R.C. 2953.21 and R.C. 2953.23 is an issue of law.” Id.
                                                    3


Here, the trial court denied Ms. Burton’s petition as untimely under R.C. 2953.21(A)(2). The

court further stated that the exceptions under R.C. 2953.23(A)(1)(a) and (b) did not apply.

Therefore, a de novo standard of review applies here. See Childs at ¶ 9.

       {¶7}    R.C. 2953.21(A)(2) provides in part that if no appeal is taken, a petition for post-

conviction relief “shall be filed no later than three hundred sixty-five days after the expiration of

the time for filing the appeal.” Prior to March 15, 2015, the statute only afforded petitioners one

hundred eighty days to file a petition. Ms. Burton did not appeal her conviction in this case. Her

sentencing entry was filed on February 23, 2010, and her petition was not filed until over six

years later on April 18, 2016, well beyond the deadline provided under R.C. 2953.21(A)(2).

       {¶8}    A court may not entertain successive or untimely petitions unless the petitioner

satisfies certain requirements. First, she must show that she was unavoidably prevented from

discovering the facts she relies on or that, subsequent to the R.C. 2953.21(A)(2) deadline, the

United States Supreme Court recognized a new federal or state right that applies retroactively to

persons in her situation, and the petition asserts a claim based on that right.                 R.C.

2953.23(A)(1)(a). Second, she must show “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 [she] was convicted * * *.” R.C. 2953.23(A)(1)(b). The parties agree that Ms.

Burton’s petition for post-conviction relief was untimely. Ms. Burton would therefore have to

meet the requirements listed under R.C. 2953.23(A)(1) for the trial court to have statutory

authority to consider the merits of her petition.

       {¶9}    As to her burden under R.C. 2953.23(A)(1)(a), Ms. Burton argued that she was

unavoidably prevented from discovering the facts she relied on in her petition. When dealing

with petitions for post-conviction relief, Ohio courts have stated that “[t]he phrase ‘unavoidably
                                                 4


prevented’ means that a defendant was unaware of those facts and was unable to learn of them

through reasonable diligence.” State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798,

¶ 19. See also State v. Short, 8th Dist. Cuyahoga No. 82246, 2003-Ohio-3538, ¶ 9. “By

definition, something that is discernible in the record would not be something a defendant has

been unavoidably prevented from discovering.” State v. Beechler, 2d Dist. Clark No. 2016-CA-

44, 2017-Ohio-1385, ¶ 28.

       {¶10} Ms. Burton attached four exhibits to her petition as evidentiary support: (1) Her

own signed affidavit, (2) a one-page online summary of the Akron case, (3) a copy of the

complaint in the Akron case, and (4) a copy of her signed waiver of rights in the Akron case.

The trial court stated that the information Ms. Burton relied on has been included in a public

record since 2004 and consequently found that she was not unavoidably prevented from

retrieving that information at any time after 2004. The court found her testimony at the hearing

and her claim that her twin sister likely stole her identity to be not credible, specifically noting

that Ms. Burton openly admitted to using her sister’s identity at various times to avoid trouble,

including in her most recent felony OVI charge in 2015. The court further noted its concern that

Ms. Burton’s testimony could be “just another attempt to blame her sister to avoid the

consequences of her own actions.” When a trial court denies a petition for post-conviction relief

after holding a hearing, we give deference to the court’s findings of fact. State v. Gondor, 112

Ohio St.3d 377, 2006-Ohio-6679, ¶ 47.

       {¶11} Ms. Burton could have exercised reasonable diligence to discover her prior Akron

conviction if she was somehow unaware of its existence. She argues that, apart from her alleged

ineffective assistance of counsel claim, an “understandable ignorance of legal technicalities”

combined with her diagnoses of manic depression and bipolar disorder and a failure to take her
                                                5


medications in 2009-2010 prevented her from discovering her prior Akron conviction. But, a

lack of resources or skills does not meet the definition of being “unavoidably prevented” from

discovering the existence of a prior conviction. See State v. Brown, 6th Dist. Lucas No. L-99-

1251, 2000 WL 20557, *2 (Jan. 14, 2000). See also State v. Shabazz, 8th Dist. Cuyahoga No.

100623, 2014-Ohio-3142, ¶ 12 (stating prior convictions are public records, which could be

discovered). Instead, Ms. Burton is attempting to raise, in an untimely manner, a legal argument

that previously existed for her. See Brown at *2. The post-conviction relief statute “does not

afford a defendant a second chance to advance a legal argument that could have been raised upon

the original trial record.” State v. Wharton, 9th Dist. Summit No. 27656, 2015-Ohio-4566, ¶ 12.

See also Brown at *2 (stating “[a] newly discovered legal argument is not a ‘newly discovered

fact’ as contemplated by R.C. 2953.23 to support a successive petition for post[-]conviction

relief.”).

        {¶12} Ms. Burton’s argument that she was unavoidably prevented from discovering her

prior Akron conviction was coupled with an argument that her trial counsel in the 2009 case was

ineffective because he did not investigate or discuss her prior misdemeanor convictions with her.

However, her ineffective assistance claim is predicated upon facts that were evident on the face

of the record and, therefore, could have been raised on direct appeal. See Wharton at ¶ 13. Ms.

Burton never appealed her conviction and, therefore, her claims are now barred by the doctrine

of res judicata. See State v. Simms, 9th Dist. Medina No. 3095-M, 2001 WL 298235, *1 (Mar.

28, 2001). “[P]ursuant to res judicata, a defendant cannot raise an issue in a motion for post[-

]conviction relief if he or she could have raised the issue on direct appeal.” (Emphasis deleted.)

State v. Reynolds, 79 Ohio St.3d 158, 161 (1997). “When the issue of competent trial counsel

could have been determined on direct appeal without resort to evidence outside of the record, res
                                                  6


judicata is a proper basis to dismiss a petition for post[-]conviction relief.” (Emphasis deleted.)

State v. Griffin, 9th Dist. Lorain No. 14CA010680, 2016-Ohio-2988, ¶ 12. “[E]vidence is not

outside the record simply because it was not raised in the original proceedings.” State v.

Blackmon, 9th Dist. Summit No. 18072, 1997 WL 423047, *2 (July 16, 1997). Ms. Burton’s

claims depend on evidence that was available to her throughout this case. She could have raised

her arguments in a direct appeal and is consequently prohibited from raising them now. See

Reynolds at 161.

       {¶13} Ms. Burton has failed to present any facts that she was unavoidably prevented

from discovering and, thus, has not satisfied her burden under R.C. 2953.23(A)(1)(a). She did

not argue that the United States Supreme Court recognized a new federal or state right that

applies retroactively to her situation. Her claims are also barred by the doctrine of res judicata.

       {¶14} Accordingly, we conclude that the trial court did not have statutory authority to

consider the merits of her petition for post-conviction relief and correctly denied it. See State v.

Russell, 9th Dist. Summit No. 28206, 2017-Ohio-723, ¶ 5.

       {¶15} Ms. Burton’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED IN FAILING TO FIND THAT BUT FOR THE
       CONSTITUTIONAL VIOLATION (INEFFECTIVE ASSISTANCE) NO
       REASONABLE FACTFINDER WOULD HAVE FOUND THE APPELLANT
       GUILTY OF THE OFFENSE OF CONVICTION.

                             ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ERRED IN FAILING TO DETERMINE WHETHER THE
       APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶16} In her second assignment of error, Ms. Burton argues that but for constitutional

error of ineffective assistance of counsel, no reasonable factfinder would have found her guilty
                                                 7


of felony OVI. In her third assignment of error, she argues that the trial court erred in failing to

address her ineffective assistance of counsel claim in its judgment entry.

       {¶17} Our resolution of the first assignment of error is dispositive of this appeal, so we

decline to address Ms. Burton’s remaining assignments of error as they are rendered moot. See

App.R. 12(A)(1)(c).

                                                III.

       {¶18} Ms. Burton’s first assignment of error is overruled. The Court need not address

assignments of error two and three as they are moot. 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

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.
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      Costs taxed to Appellant.




                                             THOMAS A. TEODOSIO
                                             FOR THE COURT



SCHAFER, P. J.
CONCURS.

CARR, J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

PAUL F. ADAMSON, Attorney at Law, for Appellant.

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