[Cite as State v. Oglesby, 2018-Ohio-871.]




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

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 27626
                                                   :
 v.                                                :   Trial Court Case No. 2013-CR-50
                                                   :
 BRYAN OGLESBY                                     :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                              Rendered on the 9th day of March, 2018.

                                              ...........

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

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio
45419
      Attorney for Defendant-Appellant

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




TUCKER, J.
                                                                                           -2-




       {¶ 1} Defendant-appellant Bryan Oglesby appeals from a decision and entry of the

Montgomery County Court of Common Pleas denying his petition for post-conviction

relief. He contends that the trial court abused its discretion in denying the petition.

       {¶ 2} We conclude that the trial court did not abuse its discretion in denying the

petition as it was untimely and Oglesby failed to present any evidence that he was

unavoidably prevented from discovering the evidence upon which he relied.

Accordingly, the judgment of the trial court is affirmed.



                            I. Facts and Procedural History

       {¶ 3} In May 2013, Oglesby was indicted, in case number 2013-CR-50, on one

count of felonious assault (serious physical harm), one count of felonious assault (deadly

weapon), and one count of having a weapon under a disability. All three counts included

a firearm specification. He was charged in another indictment, case number 2013-CR-

1282, with assault upon a corrections officer.

       {¶ 4} During a pretrial hearing, the State offered a negotiated plea whereby the

State would agree to an aggregate prison term in the range of seven to ten years in

exchange for a guilty plea on all charges in both indictments. Oglesby rejected the offer

and made a counter offer with a mandatory minimum sentence of five years. The State

rejected the counter, but did not withdraw its prior offer. Oglesby subsequently entered

a guilty plea to all charges and specifications without an agreement as to the sentence.

       {¶ 5} Prior to sentencing, Oglesby filed a motion to withdraw the plea.            New

counsel was appointed to represent Oglesby as it became evident that his original
                                                                                         -3-


counsel might be required to testify at the motion hearing. A hearing was conducted in

April 2014 following which the trial court denied the motion.

         {¶ 6} Thereafter, a sentencing hearing was conducted. The trial court sentenced

Oglesby to an aggregate prison term of 12 years. Oglesby appealed his conviction and

sentence in both cases. In his appeal, he claimed that his plea had not been made

voluntarily. This court affirmed the conviction and sentence in an opinion rendered on

June 26, 2015. See State v. Oglesby, 2d Dist. Montgomery No. 26251, 2015-Ohio-2557,

appeal not allowed, 144 Ohio St. 3d 1459 (Table), 2015-Ohio-2557, 44 N.E.3d 288.

         {¶ 7} On April 25, 2017, Oglesby filed a document entitled “Motion for Post

Conviction Relief, Alternatively, A Motion For An Order reopening Defendant’s Motion to

Withdraw Plea And Other Relief.” Oglesby claimed that his original counsel had told him,

prior to the plea, that he would receive a five-year sentence. Four affidavits, executed

by Oglesby, his mother, his aunt and his grandmother, were attached to the motion. All

four affiants averred that counsel had promised Oglesby that he would receive a five-year

sentence. The trial court overruled the motion without a hearing by entry filed May 22,

2017. The trial court found that the petition was untimely and that it was barred by the

doctrine of res judicata. The trial court also ruled that the motion to reopen his motion to

withdraw plea was barred by res judicata.

         {¶ 8} Oglesby appeals.1



                                        II. Analysis

         {¶ 9} Oglesby’s sole assignment of error states as follows:


1
    Oglesby has filed an appeal only from 2013-CR-50.
                                                                                            -4-


       THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND/OR

       ERROR WHEN IT DENIED THE MOTION FOR POST CONVICTION

       RELIEF

       {¶ 10} Oglesby contends that the trial court should have granted his motion for

post-conviction relief. In support, he contends he presented new evidence establishing

that that trial counsel promised him he would receive a five-year sentence. He further

claims that he would not have entered a plea of guilty without this promise.

       {¶ 11} A petition for post-conviction relief in Ohio is a statutorily created remedy

set forth in R.C. 2953.21. R.C. 2953.21(A)(1)(a) provides that “[a]ny person who has

been convicted of a criminal offense * * * 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.” The post-conviction

relief process is a civil collateral attack on a criminal judgment, not an appeal of that

judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).

       {¶ 12} A petition for post-conviction relief must meet strict timeliness requirements.

R.C. 2953.21(A)(2), during the relevant time period, required that a post-conviction

petition be filed “no later than one hundred and eighty days after the date on which the

trial transcript was filed in the court of appeals in the direct appeal of the judgment of

conviction or adjudication.” Here, Oglesby filed the transcript for his direct appeal on

August 20, 2014. Thus, his deadline to file a petition for post-conviction relief expired in

February 2015. Oglesby’s petition, which was filed on April 25, 2017, is untimely.2


2
  Effective March 23, 2015, R.C. 2953.21(A)(2) was amended to extend the filing deadline
to three hundred and sixty-five days after the date the trial transcript was filed in the court
of appeals. Thus, even if the more generous filing date is utilized, Oglesby’s petition was
                                                                                             -5-


       {¶ 13} A trial court may not entertain an untimely post-conviction relief petition

unless the petitioner initially demonstrates either (1) the petition was not timely filed

because he was unavoidably prevented from discovering the facts necessary for the claim

for relief, or (2) the United States Supreme Court recognized a new federal or state right

that applies retroactively to persons in the petitioner's situation. R.C. 2953.23(A)(1)(a).

“The phrase ‘unavoidably prevented’ in R.C. 2953.23(A)(1)(a) means that a defendant

was unaware of those facts and was unable to learn of them through reasonable

diligence.” State v. Turner, 10th Dist. Franklin No. 06AP–876, 2007-Ohio-1468, ¶ 11.

       {¶ 14} Because Oglesby’s petition for post-conviction relief is untimely, he must

establish that he falls within one of the exceptions specified in R.C. 2953.23(A) that would

permit him a longer time period to file his petition. We note that neither his petition nor

the four affidavits attached thereto address the issue of timeliness, nor do they raise a

claim that Oglesby was unavoidably prevented from discovering the facts relevant to the

petition. Further, his appellate brief fails to address these issues.

       {¶ 15} Although he does not directly address the lack of timeliness, Oglesby claims

that the information upon which he relies was “not known at the time of the initial hearing

on the motion to withdraw the plea nor was it argued in the initial motion.” Thus, applying

a liberal reading of his brief, it appears that he attempts to argue that the time for filing is

extended because he was unavoidably prevented from discovering that counsel had

promised him that he would be sentenced to a term of five years

       {¶ 16} We cannot discern from the record any evidence to support a finding of

unavoidable delay. Oglesby’s contention that he was promised a five-year sentence


not timely filed.
                                                                                           -6-


relies solely upon information provided by himself, his mother, his aunt and his

grandmother. All of them aver that on the day of the plea hearing, they observed counsel

hold up five fingers to signal that Oglesby would get a five-year sentence. They also

aver that they heard counsel state that Oglesby would receive a five-year sentence.

None of the relatives aver that they were prevented from providing this information to

Oglesby. Nor does he aver that he was unable to communicate with his relatives.

       {¶ 17} Even if Oglesby was not aware, or was unable to ascertain, that his relatives

heard the alleged promise or saw the alleged gesture, his own affidavit indicates that he

was aware of counsel’s promise prior to the hearing on the motion to withdraw. Yet he

failed to raise this issue in his motion to withdraw the plea.

       {¶ 18} Further, the fact that Oglesby heard the promise and observed the gesture

supports the trial court’s finding that the petition is barred by the doctrine of res judicata

as Oglesby could have raised the issue in his motion to withdraw.

       {¶ 19} “We review trial court decisions on petitions for post-conviction relief under

an abuse of discretion standard.” (Citations omitted.)           State v. Perkins, 2d Dist.

Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. “The term ‘abuse of discretion’ has been

defined as a decision that is unreasonable, arbitrary, or unconscionable.” (Citation

omitted.) State v. Howard, 2d Dist. Montgomery No. 26060, 2014-Ohio-4602, ¶ 8.

       {¶ 20} Based upon this record, we cannot conclude that the trial court abused its

discretion by denying the petition for post-conviction relief. Accordingly, the judgment of

the trial court is affirmed.



                                      III. Conclusion
                                                                                        -7-


       {¶ 21} Oglesby’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.

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



WELBAUM, P.J. and DONOVAN, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Charles W. Slicer, III
Hon. Dennis J. Adkins
