[Cite as State v. Walter, 2014-Ohio-393.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99894




                                       STATE OF OHIO

                                                              PLAINTIFF-APPELLEE

                                                 vs.

                                TERRANCE J. WALTER

                                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-485250

        BEFORE:           Jones, P.J., S. Gallagher, J., and Keough, J.

        RELEASED AND JOURNALIZED: February 6, 2014
FOR APPELLANT

Terrance J. Walter
Inmate #531-346
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: T. Allan Regas
          Joseph J. Ricotta
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

         {¶1} Defendant-appellant Terrance Walter, pro se, appeals the trial court’s April

17, 2013 judgment denying his petition for postconviction relief. We affirm.

                              I. Procedural History and Facts

         {¶2} Walter and codefendant Antonio Campbell were indicted in 2006 in

connection with the murder of Samuel Sims, Jr.      The four-count indictment charged the

men with aggravated murder, two counts of aggravated burglary, and felonious assault.

All the counts contained three- and six-year firearm specifications.

         {¶3} Campbell pleaded guilty; Walter proceeded to a jury trial.     The jury found

him guilty of all counts and specifications.       The trial court sentenced him to life

imprisonment without the possibility of parole for 20 years on the aggravated murder

charge, plus six years for the firearm specification, a concurrent term of five years for the

aggravated burglary counts, and a consecutive term of eight years for the felonious assault

count.    Thus, Walter was sentenced to an aggregate 34 years to life prison term.

         {¶4} Walter’s aggravated murder and felonious assault convictions were upheld by

this court on appeal, but the aggravated burglary convictions were not. State v. Walter,

8th Dist. Cuyahoga No. 90196, 2008-Ohio-3457. Upon remand, the trial court vacated

the convictions and sentences for the two aggravated burglary counts.

         {¶5} Walter attempted to appeal to the Ohio Supreme Court, but the court did not

allow the appeal. State v. Walter, 120 Ohio St.3d 1454, 2008-Ohio-6813, 898 N.E.2d

968. Further, this court denied his application for reopening.     State v. Walter, 8th Dist.
Cuyahoga No. 90196, 2009-Ohio-954.           In March 2013, Walter filed a petition for

postconviction relief that the trial court denied as untimely, and this is the judgment from

which Walter now appeals.

         {¶6} The detailed facts are set forth in Walter, supra, 2008-Ohio-3457, ¶ 3-15.

To summarize, Walter shot the victim, Sims, in Sims’s garage as Sims exited his car with

his nine-year old son.    Walter fled the scene.   He was not apprehended for over three

years.

         {¶7} Walter raises three assignments of error for our review, all of which assert

that his trial counsel was ineffective during the plea negotiations.

                                    II. Law and Analysis

         {¶8} Under R.C. 2953.21(A)(2), a petition for postconviction relief

         shall be filed no later than one hundred eighty days after the date on which
         the transcript is filed in the court of appeals in the direct appeal of the
         judgment of conviction * * *. If no appeal is taken * * * the petition shall
         be filed no later than one hundred eighty days after the expiration of the
         time for filing the appeal.

         {¶9} Walter’s petition was filed outside the 180-day time frame and, as such, was

untimely. However, under R.C. 2953.23, a trial court may entertain an untimely petition

for postconviction relief if the petition meets the following two conditions.

         {¶10} First, the petitioner must demonstrate that he was unavoidably prevented

from discovering the facts on which he relies in the petition, or that the United States

Supreme Court has, since his last petition, recognized a new federal or state right that

applies retroactively to the petitioner.   R.C. 2953.23(A)(1)(a).      Second, the petitioner
must show by clear and convincing evidence that a reasonable factfinder would not have

found him guilty but for constitutional error at trial. R.C. 2953.23(A)(1)(b).

       {¶11} “Unless the defendant makes the showings required by R.C. 2953.23(A), the

trial court lacks jurisdiction to consider either an untimely or a successive petition for

postconviction relief.”      State v. Masters, 8th Dist. Cuyahoga No. 99219,

2013-Ohio-3147, ¶ 9, citing State v. Carter, 2d Dist. Clark No. 03CA-11,

2003-Ohio-4838, ¶ 13, and State v. Beuke, 130 Ohio App.3d 633, 636, 720 N.E.2d 962

(1st Dist.1998).

       {¶12} Walter did not allege any new factual evidence in his petition.     Instead, he

maintained that his petition satisfied the exceptions set forth in R.C. 2953.23 based on the

United States Supreme Court decisions in Missouri v. Frye,               U.S.         , 132

S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper,              U.S. ___, 132 S.Ct.

1376, 182 L.Ed.2d 398 (2012). According to Walter, Frye and Lafler created a new

retroactive right to effective assistance of counsel during the plea bargaining process

under the Sixth Amendment.      Walter also claimed that had he been afforded effective

assistance of counsel during plea negotiations, he would have accepted a plea offer from

the state that included a recommendation for a less stringent sentence than he received.

       {¶13} This court has found that Frye and Lafler do not create a new retroactive

right, however. Masters, supra, at ¶ 11, citing State v. Hicks, 8th Dist. Cuyahoga No.

99119, 2013-Ohio-1904, ¶ 14. In Masters, because this court found that Frye and Lafler

did not create a new retroactive right, this court found that Masters failed to demonstrate
that he met one of the exceptions to the timely filing requirement under R.C.

2953.23(A)(1), and held that the trial court properly denied Masters’s request for relief

without holding a hearing, because the trial court lacked jurisdiction to review an

untimely petition. Masters at ¶ 11.

       {¶14} In light of the above, because Walter’s petition was untimely and he failed

to demonstrate that an exception to the timeliness requirement applied, the trial court did

not have jurisdiction to review his petition and it, therefore, properly denied it without a

hearing.    Accordingly, Walter’s three assignments of error are overruled.

       {¶15} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
