[Cite as State v. Thomas, 2011-Ohio-2542.]




               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 95754



                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                   OLIVER L. THOMAS

                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED
                                   Civil Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-519480

       BEFORE: Stewart, P.J., Sweeney, J., and Jones, J.

       RELEASED AND JOURNALIZED: May 26, 2011

FOR APPELLANT

Oliver L. Thomas, Pro Se
Inmate No. 571-936
Grafton Correctional Institution
2500 South Avon Beldon Road
Grafton, OH 44044


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶ 1} Defendant-appellant, Oliver L. Thomas, appeals from a court

order that granted the state of Ohio summary judgment on his second

petition for postconviction relief. The court granted summary judgment on
jurisdictional grounds, finding that Thomas failed to establish that he had

been unavoidably prevented from discovering the facts forming the basis for

the claims in the second petition. His two assignments of error challenge the

court’s dismissal.

      {¶ 2} In July 2009, Thomas pleaded guilty to five counts of gross sexual

imposition and received concurrent five-year sentences.     He did not file a

direct appeal, but instead filed two separate motions to withdraw his guilty

plea, one of which claimed that he had been denied the effective assistance of

counsel. The court denied both motions.

      {¶ 3} In December 2009, Thomas filed a petition for postconviction

relief on grounds that he had been denied the effective assistance of counsel

during the plea proceedings. The court granted summary judgment to the

state on Thomas’s petition, finding that Thomas failed to offer evidence to

substantiate how counsel had been ineffective, noting that his affidavits in

support of the petition were “rife with inadmissible evidence.” Thomas did

not appeal.

      {¶ 4} In January 2010, while the petition for postconviction relief was

pending in the trial court, Thomas filed a notice of appeal from the July 2009

guilty plea. We treated the notice of appeal as a motion for leave to file a

delayed appeal, denied the motion, and dismissed the appeal. See State v.

Thomas, 8th Dist. No. 94225, Motion No. 429388.
      {¶ 5} Thomas then filed a third motion to withdraw his guilty plea,

claiming, among other things, that defense counsel had led him to believe

that he was pleading guilty to probationable offenses and that he would, in

fact, receive probation from the court. The court denied the motion.

      {¶ 6} On June 17, 2010, Thomas filed a motion seeking leave to file a

delayed petition for postconviction relief. He claimed the delay in filing the

second petition had been caused because the trial court did not inform him of

his right to appeal and that he “just recently learned that he is entitled to a

first direct appeal of the conviction and sentence.” The substantive grounds

for the petition were ineffective assistance of trial counsel in failing to advise

him that he had the right to appeal and that trial counsel further failed to file

a direct appeal on his behalf. The state opposed the motion on grounds that

the successor petition for postconviction relief did not establish that Thomas

had been unavoidably prevented from discovering the facts he relied upon in

the motion.    The court granted the state’s motion for summary judgment

without a hearing, finding that Thomas failed to establish that he had been

unavoidably prevented from knowing that he had a right to appeal because

the record showed that he did know he had a right to appeal prior to the

expiration of time for filing his first petition for postconviction relief.

      {¶ 7} As relevant in this case, the court cannot entertain a successor

petition for postconviction relief unless the petitioner shows both that (1) he
“was unavoidably prevented from discovery of the facts upon which the

petitioner must rely to present the claim for relief” and (2) has 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[.]” See R.C. 2953.23(A)(1). These requirements are

jurisdictional, meaning that unless they are established, the court cannot

reach the merits of the petition.     State v. Muldrew, 8th Dist. No. 85661,

2005-Ohio-5000, at ¶16; State v. Sharif (Sept. 27, 2001), 8th Dist. No. 79325.

      {¶ 8} The court did not err by finding that Thomas failed to show that

he had been unavoidably prevented from discovering his right to file a direct

appeal. The record shows that Thomas filed a direct appeal while his first

petition for postconviction relief was pending before the court. The direct

appeal was untimely (it was filed at least four months after the 30-day

deadline set forth in App.R. 3(A)) and we denied leave to file a delayed

appeal. The fact remains that Thomas knew as early as November 2009 that

he could appeal from his guilty plea, as evidenced by a letter from the Ohio

Public Defender’s Office that he appended to his second petition.           This

knowledge predated the filing of his first petition for postconviction relief. It

follows that Thomas’s stated basis for seeking leave to file a second petition

for postconviction relief was demonstrably invalid. He not only knew that he

had a right to file a direct appeal, but had actually filed that appeal. That
appeal predated the first petition for postconviction relief, so it follows that

Thomas cannot say that he was unavoidably prevented from discovering that

he had a right to appeal as basis for invoking the court’s jurisdiction to hear

the second petition.

       {¶ 9} Thomas also complains that the court erred by granting summary

judgment even though the state filed an untimely opposition to his petition.

This argument is without merit because the court specifically granted the

state leave to respond to the second petition. In any event, even had the

court somehow abused its discretion by granting the state leave to respond to

the second petition, the jurisdictional nature of Thomas’s failure to show that

he had been unavoidably prevented from learning of his right to appeal from

the guilty plea was manifest on the record. The court had no choice but to

dismiss the petition.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.
MELODY J. STEWART, PRESIDING JUDGE

JAMES J. SWEENEY, J., and
LARRY A. JONES, J., CONCUR
