[Cite as State v. Mayle, 2018-Ohio-2576.]

                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                   :         OPINION

                   Plaintiff-Appellee,            :
                                                            CASE NO. 2017-A-0065
         - vs -                                   :

 DOUGLAS M. MAYLE, JR.,                           :

                   Defendant-Appellant.           :


 Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CR
 000298.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Plaintiff-Appellee).

 Douglas M. Mayle, Jr., pro se, PID: A690-320, Lake Erie Correctional Institution, P.O.
 Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).



THOMAS R. WRIGHT, P.J.


        {¶1}      Appellant, Douglas M. Mayle, Jr., appeals the dismissal of his petition for

postconviction relief. We affirm.

        {¶2}      Appellant entered an Alford guilty plea to one count of attempted felonious

assault. The trial court accepted the plea, found him guilty and sentenced him to two

years of community control.

        {¶3}      After fifteen months on community control, appellant was arrested for

repeatedly failing to report to his probation officer, a community control violation.
Appellant admitted the violation.       The trial court revoked community control and

sentenced appellant to thirty months in prison.

       {¶4}   Appellant did not timely appeal the revocation and sentence, but we granted

leave to file a delayed appeal. See State v. Mayle, 11th Dist. Ashtabula No. 2017-A-

0005, 2017-Ohio-8942. While that appeal was pending, but before it was decided,

appellant filed a petition for postconviction relief in the trial court, primarily maintaining

that the original charge against him was based on false statements and that he would

have demanded a jury trial if he had been aware of the statements.

       {¶5}   Without waiting for response, the trial court dismissed the petition solely

because appellant’s first appeal was pending before this court.

       {¶6}   In bringing this appeal, appellant advances one assignment:

       {¶7}   “The trial court abused its discretion when it dismissed appellant’s

postconviction petition without an evidentiary hearing [on the grounds that] appellant’s

appeal was still pending.”

       {¶8}   As a general proposition, the filing of a notice of appeal deprives a trial court

of the authority to engage in any act that conflicts with the appellate court’s jurisdiction to

review the appealed judgment. Willoughby-Eastlake City School Dist. v. Lake Cty. Ct. of

Common Pleas, 11th Dist. Lake No. 99-L-130, 2000 WL 522456, *4 (Apr. 21, 2000). This

typically means that a trial court is divested of jurisdiction to rule upon a motion to vacate

while an appeal is pending. Id., citing Howard v. Catholic Social Serv. of Cuyahoga Cty.,

Inc., 70 Ohio St.3d 141, 147, 637 N.E.2d 890 (1994). However, there is a statutory

exception allowing a court to consider a timely petition for postconviction relief despite an

appeal of that judgment:

       {¶9}    “The court shall consider a petition that is timely filed under division (A)(2)

of this section even if a direct appeal of the judgment is pending.” R.C. 2953.21(D).
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       {¶10} Accordingly, the pendency of a direct appeal does not deprive the trial court

of jurisdiction to consider a timely postconviction petition. State v. Lauharn, 2d Dist. Miami

No. 2011 CA 10, 2012-Ohio-1572, ¶12; State v. Frazier, 10th Dist. No. 10AP-966. 2011-

Ohio-3316, ¶6.

       {¶11} Given the express wording of R.C. 2953.21(D), dismissing the

postconviction petition solely because an appeal was pending was improper.

Nevertheless, we affirm on alternative grounds as the petition was untimely.

       {¶12} Appellant’s petition for postconviction relief challenges the validity of his

2015 conviction for attempted felonious assault, not the revocation of community control

and his prison sentence, the subject of his prior appeal.

       {¶13} When a criminal defendant does not pursue a direct appeal of his conviction

and sentence absent exceptions not present, a petition for postconviction is timely when

filed “no later than three hundred sixty-five days after the expiration of the time for filing

the appeal.” R.C. 2953.21(A)(2). Appellant was found guilty and sentenced to community

control sanctions on February 27, 2015. He did not appeal. Appellant did not file his

petition until August 2017, well past the 365-day limit.

       {¶14} A trial court’s judgment shall be affirmed when review discloses any valid

reason warranting the decision. State v. Washington, 11th Dist. Lake No. 95-L-128, 1997

WL 1843865, *6 (Jan. 10, 1997). The trial court’s dismissal is affirmed as appellant’s

petition was untimely.



CYNTHIA WESTCOTT RICE, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.




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