[Cite as State v. Taylor, 2019-Ohio-842.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2018-L-091
        - vs -                                       :

CLIFFORD D. TAYLOR,                                  :

                 Defendant-Appellant.                :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 14 CR 000715.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Clifford D. Taylor, pro se, PID# A662-816, North Central Correctional Institution, 670
Marion-Williamsport Road, Marion, OH 43302 (Defendant-Appellant).


MATT LYNCH, J.

        {¶1}     Defendant-appellant, Clifford D. Taylor, appeals the Lake County Court of

Common Pleas June 5, 2018 Order Denying Motion to Vacate Set Aside [sic] Illegal

Sentence/Invalid Indictment. For the following reasons, we affirm the decision of the

court below.

        {¶2}     On October 15, 2014, Clifford pled guilty to two counts of Rape, felonies of

the first degree in violation of R.C. 2907.02(A)(2). Prior to sentencing, Clifford moved to

withdraw his guilty plea. The trial court denied the motion and sentenced Clifford to
serve consecutive eleven-year prison sentences for each count of Rape. This court

affirmed Clifford’s convictions in State v. Taylor, 2015-Ohio-2080, 33 N.E.3d 123 (11th

Dist.).

          {¶3}   On October 30, 2017, Taylor filed a Motion to Vacate Set Aside Illegal

Sentence/Invalid Indictment, arguing that his convictions and sentence should be

vacated because his constitutional rights were violated by post-indictment delay, denial

of the right to counsel, denial of access to the law library, and due process violations.

The State of Ohio filed its Response on May 29, 2018.

          {¶4}   On June 5, 2018, the trial court issued an Order Denying Motion to Vacate

Set Aside Illegal Sentence/Invalid Indictment. The court construed the Motion as one

for postconviction relief and denied it as untimely. Additionally, the court noted that

Taylor’s claims were barred by res judicata.

          {¶5}   On July 2, 2018, Clifford filed a Notice of Appeal. On appeal, he raises

the following assignments of error:

          {¶6}   “[1.] Appellant was denied counsel during critical stage of post indictment

period.”

          {¶7}   “[2.] Rights to access legal material.    During punitive restrictions the

defendant was denied access to courts to research case, due to missing counselor.”

          {¶8}   “[3.] Appellant was unduely (sic) placed in punitive housing and punished

for no documented infraction. He was denied freedoms other prisoners enjoyed and the

basic needs like exercise.”

          {¶9}   “Any person who has been convicted of a criminal offense * * * who claims

that there was such a denial or infringement of the person’s rights as to render the

judgment void or voidable under the Ohio Constitution or the Constitution of the United

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States * * * may file a petition in the court that imposed sentence, stating the grounds for

relief relied upon, and asking the court to vacate or set aside the judgment or sentence

or to grant other appropriate relief.” R.C. 2953.21(A)(1)(a). Such petition “shall 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 or conviction.” R.C.

2953.21(A)(2).

       {¶10} “[A] court may not entertain a petition filed after the expiration of the period

prescribed in division (A) of [section 2953.21 of the Revised Code] * * * unless * * *

[e]ither the petitioner shows that the petitioner was unavoidably prevented from

discovery of the facts upon which the petitioner must rely to present the claim for relief,

or * * * the United States Supreme Court recognized a new federal or state right that

applies retroactively to persons in the petitioner’s situation,” and “[t]he petitioner shows

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 the petitioner

was convicted.” R.C. 2953.23(A)(1).

       {¶11} “[A] petitioner’s failure to satisfy R.C. 2953.23(A) deprives a trial court of

jurisdiction to adjudicate the merits of an untimely or successive postconviction petition.”

State v. Apanovitch, __ Ohio St.3d __, 2018-Ohio-4744, __ N.E.3d __, ¶ 36.

       {¶12} The trial court properly construed Taylor’s Motion to Vacate Set Aside

Illegal Sentence/Invalid Indictment as a postconviction relief petition.       “Courts may

recast irregular motions into whatever category necessary to identify and establish the

criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153,

2008-Ohio-545, 882 N.E.2d 431, ¶ 12. An irregular motion “meets the definition of a

motion for postconviction relief set forth in R.C. 2954.21(A)(1)” where it “was (1) filed

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subsequent to [the] direct appeal, (2) claimed a denial of constitutional rights, (3) sought

to render the judgment void, and (4) asked for vacation of the judgment and sentence.”

State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).

       {¶13} In the present case, Taylor has failed to make any argument for the

timeliness of his Motion to Vacate, either in the court below or before this court.

Accordingly, the trial court did not err by denying the Motion (although authority exists

for the proposition that untimely postconviction petitions are more properly dismissed

rather than denied). State v. Kegley, 3d Dist. Crawford No. 3-18-03, 2018-Ohio-4167, ¶

22 (“[t]rial courts should dismiss untimely postconviction petitions for lack of jurisdiction;

nevertheless, a trial court does not commit reversible error by denying an untimely

postconviction petition”); State v. Christian, 10th Dist. Franklin No. 16AP-857, 2017-

Ohio-2677, ¶ 15 (“the trial court did not err in denying Christian’s untimely petition for

postconviction relief, though technically the trial court should have dismissed the petition

for lack of jurisdiction”); State v. Ulmer, 4th Dist. Scioto No. 15CA3708, 2016-Ohio-

2873, ¶ 17 (“[i]nstead of denying Appellant’s petition for postconviction relief based

upon res judicata principles, * * * the trial court should have dismissed Appellant’s

petition for lack of jurisdiction based upon the fact that it was untimely filed”).

       {¶14} We note that Taylor refers to a period of “92 days during post indictment to

trial” in which he was allegedly without counsel as a “structural problem.” The Ohio

Supreme Court has recognized that “structural error,” i.e., an error which “necessarily

render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining

guilt or innocence,” exists in a “very limited class of cases,” such as where there has

been a complete denial of the right to counsel. (Citation omitted.) State v. Wilks, 154




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Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 132-133; Gideon v. Wainwright,

372 U.S. 335, 344-345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

      {¶15} A claim of structural error does not affect the disposition of the present

appeal.    Such claim does not excuse Taylor from satisfying the jurisdictional

requirement of filing a timely postconviction petition. State v. Cunningham, 2016-Ohio-

3106, 65 N.E.3d 307, ¶ 24 (3d Dist.) (“Cunningham cannot offer a constitutional

structural-error argument as a way of alleviating himself of compliance with the

[postconviction relief] statute”). Moreover, Taylor does not allege a complete denial of

the right to counsel, but, rather, that his appointed counsel was ineffective by failing to

assist him during “the entire critical stage of preparation” following indictment. We also

emphasize that the dates during which Taylor claims his counselor was inactive,

between June 30 and October 1, 2014, refer to a separate case, State v. Taylor, Lake

County C.P. No. 14CR000019, which was ultimately dismissed on the State’s motion of

nolle prosequi on December 28, 2015. Taylor was not indicted in the underlying case

until October 15, 2014, on which date he entered his plea of guilty with the assistance of

appointed counsel.

      {¶16} The assignments of error are without merit.

      {¶17} For the foregoing reasons, we affirm the decision of the Lake County

Court of Common Pleas, denying Taylor’s Motion to Vacate Set Aside Illegal

Sentence/Invalid Indictment. Costs to be taxed against appellant.



TIMOTHY P. CANNON, J.,

MARY JANE TRAPP, J.,

concur.

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