[Cite as State v. Deaton, 2019-Ohio-2128.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 28120
                                                   :
 v.                                                :   Trial Court Case No. 2016-CR-66
                                                   :
 JAMES A. DEATON                                   :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 31st day of May, 2019.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

KORT GATTERDAM, Atty. Reg. No. 0040434 and DAVID F. HANSON, Atty. Reg. No.
0059580, 280 Plaza, Suite 1300, 280 North High Street, Columbus, Ohio 43215
     Attorneys for Defendant-Appellant

                                             .............




TUCKER, J.
                                                                                           -2-




       {¶ 1} The   trial   court   dismissed   Appellant   James     Deaton’s   petition   for

postconviction relief based upon its conclusion that the petition was not timely filed. The

trial court also concluded that the petition, even if timely filed, was barred by the doctrine

of res judicata. Deaton’s petition was timely filed, and, as conceded by the State of Ohio,

res judicata did not act to bar the petition. The trial court’s judgment is reversed and

remanded for consideration of the merits of Deaton’s petition.



                              Facts and Procedural History

       {¶ 2} Deaton was convicted and sentenced for felonious assault (deadly weapon)

with an attached firearm specification, abduction with an attached firearm specification,

having weapons under disability, and other offenses. After the merger of certain counts,

the trial court sentenced Deaton to a 15-year prison term.

       {¶ 3} Deaton’s convictions resulted from an encounter with his estranged wife. It

was not disputed that, during the encounter, the wife’s vehicle was twice struck by bullets

fired from a revolver Deaton possessed while she was seated in the vehicle. The factual

disputes at trial centered upon how Deaton came to possess the revolver, and whether,

as asserted by Deaton, the revolver twice discharged accidentally. The jury obviously

resolved these factual disputes against Deaton.

       {¶ 4} Deaton appealed the convictions, and appellate counsel was appointed.

Appellate counsel filed a praecipe for transcript which requested the preparation and filing

of a transcript of the final pretrial hearing and of the three-day jury trial. The requested

transcripts were filed in this court on August 24, 2016. Before any briefs had been filed,
                                                                                        -3-


appellate counsel sought leave to withdraw as Deaton’s attorney.         The motion was

granted. Shortly thereafter, new counsel entered an appearance on Deaton’s behalf.

New counsel filed a motion to supplement the appellate record with a transcript of

Deaton’s sentencing hearing and filed a second praecipe for transcript. The motion

stated that, “due to unknown circumstances, the record previously submitted did not

include the Sentencing Hearing transcript.” We sustained the motion. The sentencing

hearing transcript was filed in this court on December 16, 2016. We ultimately affirmed

Deaton’s convictions. State v. Deaton, 2d Dist. Montgomery No. 27181, 2017-Ohio-

7044.

        {¶ 5} On December 15, 2017, Deaton filed a pro se petition requesting

postconviction relief under R.C. 2953.21. The petition, broadly speaking, asserted that

Deaton’s trial attorney provided ineffective assistance of counsel because counsel did not

retain and call as a witness an expert to support Deaton’s claim that his firearm had

discharged accidentally.    The petition included a report prepared by John Nixon, a

ballistics and firearms expert, that can be interpreted to support the claim of accidental

discharge.

        {¶ 6} The trial court dismissed Deaton’s petition. The trial court determined that

the petition was filed beyond the statutory limitation period, that no statutory exception

acted to save the late filing, and, as such, the court was without jurisdiction to consider

Deaton’s petition. This appeal followed.



                                        Analysis

        {¶ 7} Deaton asserts three assignments of error as follows:
                                                                                            -4-


              THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING

       APPELLANT’S PETITION UNTIMELY AS APPELLANT FILED HIS

       PETITION WITHIN THE STATUTORY TIMEFRAME.

              THE TRIAL COURT ABUSED ITS DISCRETION IN APPLYING RES

       JUDICATA TO APPELLANT’S GROUND FOR RELIEF IN HIS POST-

       CONVICTION PETITION AS APPELLANT PRESENTED EVIDENCE

       DEHORS THE RECORD CONTAINING SUFFICIENT OPERATIVE

       FACTS TO DEMONSTRATE THAT TRIAL COUNSEL WAS INEFFECTIVE

       IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO

       THE U.S. CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16, OHIO

       CONSTITUTION, AND R.C. 2953.21.

              THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT

       OVERRULED APPELLANT’S MOTION FOR LEAVE TO AMEND IN

       VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

       U.S. CONSTITUTION; ARTICLE I, SECTION 10 AND 16, OHIO

       CONSTITUTION; AND R.C. 2953.21.



                                Petition Was Timely Filed

       {¶ 8} R.C. 2953.21(A)(2) provides that when a direct appeal is involved, a

postconviction relief petition must be filed “no later than three hundred sixty-five days after

the date on which the trial transcript is filed in the court of appeals in the direct appeal of

the judgment of conviction * * *.” R.C. 2953.23(A)(1)(a) and (b) provides that a petition

filed after the 365-day limitation period may be considered if certain conditions are met.
                                                                                               -5-


A trial court is without jurisdiction to consider a postconviction relief petition if it is filed

outside the limitation period and the petitioner fails to satisfy R.C. 2953.23(A)(1)(a) and

(b). State v. Greathouse, 2d Dist. Montgomery No. 24084, 2011-Ohio-4012, ¶ 12; State

v. Chavis, 10th Dist. Franklin No. 15AP-557, 2015-Ohio-5549, ¶ 14; State v. Cunningham,

2016-Ohio-3106, 65 N.E.2d 307, ¶ 13 (3d Dist.).

       {¶ 9} The trial court, not realizing that R.C. 2953.21(A)(2) had been amended to

extend the filing deadline to 365 days, analyzed the timeliness issue based upon the

previous 180-day limitation period. Using the incorrect 180-day limitation period, the trial

court concluded that Deaton’s petition was not timely filed and that the petition was not

saved by application of R.C. 2953.23(A)(1)(a) or (b).1 Based upon these conclusions,

the trial court determined that it was without jurisdiction to decide the petition.

       {¶ 10} While conceding the trial court’s error, the State nonetheless asserts that

Deaton’s petition was not timely filed. This argument rests upon the contention that the

trial transcript was filed on August 24, 2016, the date that the transcripts of the final pretrial

hearing and the jury trial were filed in the court of appeals in accordance with the first

praecipe. If the August 24 filing began the limitation period clock, the petition was filed

late, R.C. 2953.23(A)(1) does not assist Deaton, and the trial court, despite its mistake,

correctly dismissed the petition. We conclude, however, that the limitation period began

to run on December 16, 2016, the date that the transcript of the sentencing hearing was



1
  R.C. 2953.23(A)(1)(a), (b) provides that an otherwise untimely petition may be
considered if the petitioner establishes either that he was “unavoidably prevented” from
discovery of the facts upon which the petition relies or the United States Supreme Court
has recognized the retroactive application of a new federal or state right applicable to the
petitioner, and the petitioner establishes by clear and convincing evidence that but for the
“constitutional error * * * no reasonable jury would have found the petitioner guilty * * *.”
                                                                                         -6-


filed in the court of appeals in accordance with the second praecipe. Thus, Deaton’s

petition, filed on December 15, 2017, was timely.

       {¶ 11} Resolution of which date controls – August 24, 2016 or December 16, 2016

– turns upon the meaning of the term “trial transcript” set forth in R.C. 2953.21(A)(2).

The term is not defined; however, the First Appellate District, in State v. Barker, 2016-

Ohio-8476, 78 N.E.3d 1250 (1st Dist.), had an opportunity to discuss and resolve the

meaning of “trial transcript.” After a motion to suppress was overruled, Barker pleaded

no contest to several criminal counts. Barker appealed, and appellate counsel was

appointed. Counsel filed a praecipe requesting the transcription and filing of a “complete

transcript of the proceedings” including “all pretrial proceedings.”      Id. at ¶ 6.    All

proceedings were transcribed and filed except for a suppression hearing, which was not

transcribed because the trial court did not file a decision and entry overruling the

suppression motion. Upon becoming aware of the omission, counsel requested that the

appellate record be supplemented with the suppression hearing transcript.               The

appellate court ordered the supplementation. Thereafter, the appellate court affirmed

Barker’s conviction.

       {¶ 12} In the meantime, Barker had filed a petition for postconviction relief. The

trial court, without timeliness of the petition being raised, dismissed Barker’s petition on

substantive grounds. Barker, once again, appealed. The State, on appeal, asserted

that the limitation period began to run when, in the first appeal, the plea and sentencing

hearing transcripts were filed in the court of appeals. The Barker opinion rejected the

State’s argument concluding that “Barker’s trial transcripts consisted of those transcripts

of the proceedings before the trial court that were ‘necessary for inclusion in the record
                                                                                                  -7-

[on appeal].’ ” Barker ¶ 12, quoting App.R. 9(B)(1). The Barker decision concluded that

the suppression hearing transcript was necessary for inclusion in the appellate record,

that, given this, the limitation period began to run upon the filing of the suppression

hearing transcript, and, thus, Barker’s petition seeking postconviction relief was timely

filed.

         {¶ 13} In support of its interpretation of the “trial transcript” and its filing, the Barker

court noted that the Ohio Supreme Court, in State v. Everette, 129 Ohio St.3d 317, 2011-

Ohio-2856, 951 N.E.2d 1018, “defined the term ‘trial transcripts’ with reference to App.R.

9 and used this term interchangeably with the term ‘transcript of proceeding,’ in holding

[under a previous version of App.R. 9] that the filing of the certified written [rather than

videotaped] transcript triggers the [commencement of the R.C. 2953.21(A)(2) limitation

period].” Barker at ¶ 10.2

         {¶ 14} Consistent with Barker, we conclude that the term “trial transcript” as used

in R.C. 2953.21(A)(2) means those transcripts of the trial court proceedings that are

objectively necessary for inclusion in the appellate record. This definition takes into

account appellate record supplementation of unnecessary or irrelevant transcripts,

perhaps filed with the intent of pushing back the postconviction relief limitation period.

As stated in State v. Durham, 8th Dist. Cuyahoga No. 98044, 2012-Ohio-4165, “an

appellant should not be allowed to unilaterally extend the statute’s time limitation by filing

irrelevant transcripts of pretrial hearings months after the filing of [the] trial transcripts.”

(Citations omitted.) Durham at ¶ 6. See also State v. Chavis-Tucker, 10th Dist. Franklin



2
  Upon consideration of the merits, Barker affirmed the trial court’s dismissal of the petition
for postconviction relief.
                                                                                          -8-

No. 05AP-944, 2006-Ohio-3105 (scheduling and bond hearing transcripts); State v.

Dotson, 2d Dist. Clark No. 2006-CA-45, 2007-Ohio-4078 (witness’s grand jury testimony).

       {¶ 15} We conclude that the sentencing hearing transcript was objectively

necessary for inclusion in the appellate record, and that the requested record

supplementation, which we granted, was not an attempt to extend the postconviction

limitation period. We realize that, in the direct appeal, Deaton did not assert a sentencing

error. This, however, does not change the fact that the sentencing hearing is an integral

part of a criminal case. Accordingly, we conclude that the R.C. 2953.21(A)(2) “trial

transcript” in Deaton’s original appeal was filed on December 16, 2016. Thus, Deaton’s

petition for postconviction relief was timely filed. Deaton’s first assignment of error is

sustained.



                         Res Judicata Did Not Bar the Petition

       {¶ 16} The trial court also concluded that res judicata barred Deaton’s ineffective

assistance of counsel assertion. In response to Deaton’s second assignment of error,

the State concedes that res judicata did not bar the ineffective assistance of counsel claim

asserted in Deaton’s petition, because the claim relied on evidence outside the record.

Thus, Deaton’s second assignment of error is sustained.



                No Need to Resolve Whether the Trial Court Erred by

                  Overruling Deaton’s Motion to Amend the Petition

       {¶ 17} Deaton, in his final assignment of error, asserts that the trial court erred by

overruling his motion to amend his petition for postconviction relief. Since the case has
                                                                                           -9-


to be remanded to the trial court, we conclude that there is no necessity to rule upon this

assignment of error. Upon remand, Deaton may refile the motion to amend the petition.

If he does so, the trial court can determine, in light of the need to decide the petition upon

its merits, whether it is appropriate to allow the petition to be amended.



                                        Conclusion

       {¶ 18} Deaton’s first and second assignments of error are sustained.              The

judgment of the trial court is reversed, and the case is remanded to the trial court for

consideration of the petition for postconviction relief on its merits.



                                       .............



DONOVAN, J. and HALL, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Andrew T. French
Kort Gatterdam
David F. Hanson
Hon. Timothy N. O’Connell
