[Cite as State v. Durham, 2012-Ohio-4165.]




                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98044


                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                        ROY DURHAM
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-525549

        BEFORE: Stewart, P.J., Cooney, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                     September 13, 2012
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, OH 44137


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: T. Allan Regas
          Kristen L. Sobieski
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

      {¶1} Defendant-appellant Roy Durham, Jr. sought postconviction relief from his

conviction for felonious assault and kidnapping. He claimed that he was denied the

effective assistance of counsel because his trial attorney failed to investigate and

subpoena potential witnesses and failed to utilize exculpatory evidence at trial. The state

argued that Durham’s claims were barred by res judicata because the evidence submitted

in support of the petition was available to Durham prior to trial. The court denied relief

finding that none of the documents that Durham offered were outside the original record

and that other evidence did not amount to newly discovered evidence outside the record.

      {¶2} R.C. 2953.21(A)(1) permits a person convicted of a criminal offense, and

who claims that there was a denial or infringement of the person’s rights under either the

Ohio Constitution or the United States Constitution, to file a petition asking the court to

vacate or set aside the judgment.       R.C. 2953.21(A)(2) states that a petition for

postconviction relief must be filed “no later than one hundred eighty 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[.]” The time requirements for postconviction relief under R.C.

2953.21(A) are jurisdictional. State v. Hutton, 8th Dist. No. 80763, 2007-Ohio-5443, ¶

23.
       {¶3} The state argues that Durham did not timely file his petition for

postconviction relief. It maintains that the record in Durham’s direct appeal was filed

June 10, 2010 and that Durham did not file his petition for postconviction relief until

March 12, 2011 — a time period exceeding 180 days. It further argues that Durham did

not explain the delay by advising the court that he had been “unavoidably prevented”

from discovering the facts that he was relying upon in the petition nor did he claim

entitlement to a new federal or state right that applied retroactively to his situtation. See

R.C. 2953.23(A).

       {¶4} The state’s recitation of facts is correct — more than 180 days elapsed from

the time the record was filed in Durham’s direct appeal to the time he filed his petition for

postconviction relief. So on the face of the record, Durham’s petition was untimely.

       {¶5} Although Durham filed a supplemental record in his direct appeal on

September 13, 2010, this filing did not extend the time in which to file the petition for

postconviction relief. The filing of a supplemental record “is irrelevant for the purposes

of the 180-day time limit for a postconviction relief petition.” State v. Rice, 11th Dist.

No. 2010-A-0046, 2011-Ohio-3746, ¶ 26.          “For purposes of determining when the

180-day time period for filing a postconviction relief petition shall accrue, only the

certified, written transcript constitutes a ‘transcript’ under App.R. 9 and R.C.

2953.21(A)(2) * * *.” State v. Everette, 129 Ohio St. 3d 317, 2011-Ohio-2856, 951

N.E.2d 1018, syllabus.      And in State v. Chavis-Tucker, 10th Dist. No. 05AP-974,

2006-Ohio-3105, the court of appeals rejected a contention that the 180-day time period
to file a petition for postconviction relief began from the filing of two supplemental

transcripts of pretrial hearings. Id. at ¶ 7-9.

       {¶6} The rationale behind these holdings is that 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 his trial transcript. State v. Johnson, 11th Dist. No.

99-T-0143, 2001 Ohio App. LEXIS 494 (Feb. 9, 2001); Chavis-Tucker at ¶ 8.

       {¶7} Durham received permission to supplement the record with proceedings in

CR-504209. That was a previous case number involving the same charges. It had been

dismissed without prejudice by the state and refiled as CR-525549. Nothing in the

record from CR-504209 had any relevance to the appeal from Durham’s conviction in

CR-525549.       Durham also received permission to supplement the record with

proceedings from a domestic violence case in the Bedford Municipal Court. Again, the

record from the municipal court case had no relevance to the appeal in CR-525549.

       {¶8} Although the court did not state timeliness as a basis for denying the

requested relief, we may sua sponte raise timeliness because it is a jurisdictional issue.

State v. Hill, 160 Ohio App.3d 324, 2005-Ohio-1501, 827 N.E.2d 351, ¶ 15 (8th Dist.).

We conclude that the filing of the supplemental record in Durham’s direct appeal did not

extend the time to file a petition for postconviction relief.           The certified, written

transcript from that appeal was filed on June 10, 2010. Durham did not file his petition

for postconviction relief until March 12, 2011 — a period in excess of 180 days. This

deprived the court of jurisdiction to consider the petiton for postconviction relief.
      {¶9} 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

COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR
