[Cite as State v. Sandoval, 2014-Ohio-4972.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                      Court of Appeals Nos. S-13-032
                                                                         S-13-034
        Appellee
                                                   Trial Court No. 00 CR 199

v.

Manuel Sandoval, Jr.                               DECISION AND JUDGMENT

        Appellant                                  Decided: November 7, 2014

                                               *****

        Thomas L. Steirwalt, Sandusky County Prosecutor, and
        Norman P. Solze, Assistant Prosecuting Attorney, for appellee.

        Manuel Sandoval, Jr., pro se.

                                               *****

        PIETRYKOWSKI, J.

        {¶ 1} We consider appeals by Manuel Sandoval, Jr., appellant, of judgments filed

in the Sandusky County Court of Common Pleas on September 20, 2013, and October 8,

2013. The September 20, 2013 judgment denied appellant’s Civ.R. 33(B) motion for
leave to file a motion for a new trial based upon newly discovered evidence. The

October 8, 2013 judgment denied appellant’s motion for postconviction relief. Although

filed as separate appeals, we have consolidated the appeals for proceedings in this court.

                                         Case History

       {¶ 2} Appellant was convicted and sentenced for the murder of Alfredo Perez in

the year 2000 pursuant to a guilty verdict returned by a jury at trial. The trial court

sentenced appellant to serve a 15 years to life prison term and a mandatory five year

period of postrelease control. We affirmed the trial court judgment on direct appeal.

State v. Sandoval, 6th Dist. Sandusky No. S-00-042, 2002 WL 398331 (Mar. 15, 2002)

(“Sandoval 1”).

       {¶ 3} On January 10, 2011, appellant filed a motion in the trial court for

resentencing with respect to postrelease control. The trial court conducted a postrelease

control resentencing hearing on February 2, 2011, and on that date entered a judgment

resentencing appellant with respect to postrelease control. Appellant appealed that

judgment.

       {¶ 4} Appellant also filed a motion in the trial court for leave to file a motion for a

new trial on the basis of newly discovered evidence. The trial court denied the

application on January 7, 2011. Appellant appealed that judgment.

       {¶ 5} We consolidated the two appeals and in a March 16, 2012 judgment

affirmed both trial court judgments. State v. Sandoval, 6th Dist. Sandusky Nos. S-11-006




2.
and S-11-013, 2012-Ohio-1117 (“Sandoval 2”). Appellant claimed in the appeal that a

subjective statement by his wife constituted newly discovered evidence. Id. at ¶ 8. In the

appeal, we concluded that the statement did not contain new facts or evidence. Id. At

¶ 14.

        {¶ 6} On January 28, 2011, appellant filed a petition for postconviction relief and

the trial court denied the petition on February 1, 2011. Appellant appealed the judgment.

We affirmed the trial court judgment on December 7, 2012. State v. Sandoval, 6th Dist.

Sandusky No. S-11-042, 2012-Ohio-5806 (“Sandoval 3”).

        {¶ 7} Appellant contended in Sandoval 3 that the state knowingly withheld

evidence pertinent to his defense at trial. Appellant acknowledged that he learned of the

withheld evidence in October 2000, shortly after trial. Id. at ¶ 7. Appellant also

contended in the motion that his former wife had been coerced by prosecutor and police

into giving false testimony against him. Appellant asserted that he learned of the

coercion of the witness when he received his wife’s affidavit in 2005. Id. at ¶ 9.

        {¶ 8} In the appeal, we ruled that appellant’s petition for postconviction relief was

untimely as it was filed after the 180 day filing deadline under R.C. 2953.21(A)(2) and

appellant was not unavoidably prevented from discovery of the facts upon which the

claim for relief was based to permit filing of the petition after the 180 day period, under

an exception provided in R.C. 2953.23(A). Sandoval 3 at ¶ 8-9.




3.
       {¶ 9} Appellant appears pro se in this appeal and asserts seven assignments of

error with respect to the denial of his motion for a new trial and petition for

postconviction relief in September and October, 2013:

                                   Assignments of Error

              1. The trial court abused its discretion in failing to grant appellant’s

       motion for leave to file a motion for a new trial based upon newly

       discovered evidence.

              2. The trial court committed an error of law by not including in its

       ruling the findings of fact and conclusions of law as required by Crim.R.

       35(c) and R.C. 2953.21(G).

              3. Appellant was denied his Sixth and Fourteenth Amendments

       rights when trial counsel failed to render adequate legal assistance in not

       conducting pre-trial investigation which would have shown that the

       appellant was innocent.

              4. Appellant was denied his Sixth and Fourteenth Amendment rights

       when counsel failed to present expert evidence that would have exonerated

       the appellant.

              5. Appellant was denied his Sixth and Fourteenth Amendment rights

       when trial counsel failed to object to the trial court’s abuse of discretion in




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       admitting State’s Exhibit #46, the photo of the tire iron, into evidence

       during the jury deliberations.

               6. Appellant was denied his Sixth and Fourteenth Amendment rights

       when trial counsel failed to object and file a motion to suppress the

       testimony of Det. O’Connell because O’Connell did purposely mislead the

       jury and deliberately misrepresented the statements made by appellant on

       tape.

               7. The trial court erred when it failed to hold an evidentiary hearing

       on petitioner’s postconviction petition.

       {¶ 10} Under assignment of error No. 1, appellant asserts that the trial court

abused its discretion in denying appellant’s motion for leave to file a motion for a new

trial on the basis of newly discovered evidence, provided in an affidavit by Joey

Richardson. Richardson stated in his affidavit that he spoke to Alejandro Montez in 2002

when both he and Montez were inmates at the Lima Correctional Institution in Lima,

Ohio. The conversation concerned the 1996 murder of Alfred Perez, for which appellant

was convicted. According to Richardson, Montez was concerned about his health and

stated that he had leukemia, the leukemia had been in remission, but it appeared to be

returning.

       {¶ 11} According to Richardson, Montez told him “that sins were coming back to

bite him in the rear.” Montez allegedly told Richardson “that he killed a man




5.
accidentally in hometown of Fremont back in 1996 and that he let * * * Manny

[appellant] take the fall for it.” Montez told Richardson that he wanted to get it off his

chest.

         {¶ 12} In the affidavit, Richardson provided a detailed description of the incident

as allegedly stated by Montez. This included a statement by Montez that he killed Perez

with a carjack, allegedly by striking Perez in the back of the head, knocking him to the

ground, and then hitting Perez more times after he fell to the ground. According to the

affidavit, Montez stated that the killing occurred behind a Mexican restaurant located

near Perez’s trailer in Fremont on December 25, 1996.

         {¶ 13} Crim.R. 33(B) requires a defendant to seek leave of court to file a motion

for a new trial on the basis of newly discovered evidence where more than 120 days have

elapsed from the date the verdict was returned at trial. State v. Rodriguez, 6th Dist. Wood

Nos. WD-13-026, WD-13-053, and WD-13-071, 2014-Ohio-1313, ¶ 8-10. Under the

rule, the moving defendant must prove by “clear and convincing proof that the defendant

was unavoidably prevented from the discovery of the evidence” on which the motion for

a new trial is based. Crim.R. 33(B). “[A] party is unavoidably prevented from filing a

motion for new trial if the party had no knowledge of the existence of the ground

supporting the motion for new trial and could not have learned of the existence of that

ground within the time prescribed for filing the motion for new trial in the exercise of




6.
reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 145–146, 483 N.E.2d 859

(10th Dist.1984).

       {¶ 14} The jury returned its verdict in this case on October 18, 2000. Richardson

signed his affidavit on March 15, 2013. The affidavit details a statement allegedly made

in 2002. Appellant submitted no other affidavits or evidentiary material in support of his

Crim.R. 33(B) motion for leave to file. Appellant filed his motion for leave to file on

May 20, 2013.

       {¶ 15} The trial court denied the motion on September 20, 2013, ruling that

appellant failed to show by clear and convincing evidence that he had been unavoidably

prevented from filing the motion on a timely basis. An appellate court reviews the denial

of leave to file a motion for a new trial under Crim.R. 33 under an abuse of discretion

standard. State v. Willis, 6th Dist. Lucas No. L-06-1244, 2007-Ohio-3959, ¶ 12.

       {¶ 16} Appellant did not provide any affidavit or evidentiary material setting forth

when he first learned of Richardson’s 2002 conversation with Alejandro Montez. The

fact that Richardson’s affidavit was executed in March 2013, alone provides no evidence

that it could not have been secured earlier:

              [I]t has been squarely held that “the use of an affidavit signed

       outside of the time limit [under Crim.R. 33(B)] that fails to offer any reason

       why it could not have been obtained sooner is not adequate to show by

       clear and convincing proof that the evidence could not have been obtained




7.
       within the prescribed time period.” State v. Franklin, 7th Dist. No. 09 MA

       96, 2010-Ohio-4317, ¶ 20. State v. Peals, 6th Dist. Lucas No. L-10-1035,

       2010-Ohio-5893, ¶ 25.

       {¶ 17} As the defendant in State v. Peals, appellant offered no evidence to

establish unavoidable delay. He did not submit his own affidavit setting forth when he

first learned of the 2002 conversation or the circumstances of the discovery. The

Richardson affidavit also failed to address the issue. Accordingly we conclude that the

trial court did not abuse its discretion in denying appellant’s motion for leave to file a

motion for a new trial.

       {¶ 18} We find assignment of error No. 1 not well-taken.

       {¶ 19} Assignments of error Nos. 2 through 7 concern the trial court’s judgment

denying postconviction relief. Assignments Nos. 3, 4, 5, and 6 claim ineffective

assistance of counsel on various grounds. In assignment No. 7, appellant argues that the

trial court erred in failing to conduct an evidentiary hearing on the petition for

postconviction relief.

       {¶ 20} In assignment of error No. 2, appellant contends that the trial court erred in

failing to issue findings of fact and conclusions of law in its judgment denying relief.

The state argues that appellant’s petition for postconviction relief was untimely and that

the court was not required to issue findings of fact and conclusions of law under R.C.

2953.21(G). We agree. In a prior appeal in this case, we recognized that:




8.
              The requirement under R.C. 2953.21(G) that a trial court file

       findings of fact and conclusions of law when a court denies a petition for

       postconviction relief is not applicable to the trial court's rejection of an

       untimely petition for postconviction relief under R.C. 2953.23.” State ex

       rel. Hach v. Summit Cty. Court of Common Pleas, 102 Ohio St.3d 75,

       2004-Ohio-1800, 806 N.E.2d 554, ¶ 9, citing State ex rel. Reynolds v.

       Basinger, 99 Ohio St.3d 303, 2003–Ohio–3631, 791 N.E.2d 459, ¶ 7.

       Sandoval 3, 6th Dist. Sandusky No. S-11-042, 2012-Ohio-5806 at ¶ 10.

       {¶ 21} R.C. 2953.21(A)(2) requires that a petition for postconviction relief “shall

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 or

adjudication.” The trial transcript in this case was filed on direct appeal on January 26,

2001. Appellant filed this latest petition for postconviction relief on October 7, 2013,

more than 12 years after the 180 day statutory period set forth in R.C. 2953.21(A)(2)

expired.

       {¶ 22} A trial court has lacks jurisdiction to consider an untimely petition for

postconviction relief, filed after the 180 day period, unless the delay in filing is excused

under R.C. 2953.23(A). State v. Guevara, 6th Dist. Lucas No. L-12-1218, 2013-Ohio-

728, ¶ 8. We addressed the exception provided in R.C. 2953.23(A)(1) to the filing

requirement in Sandoval 3:




9.
              R.C. 2953.23(A) provides that a postconviction relief petition can be

       filed beyond the 180-day filing deadline set by R.C. 2953.21(A)(2) if the

       petitioner can show that he was unavoidably prevented from discovery of

       the facts upon which the claim for relief is based and but for the

       constitutional errors, no reasonable factfinder would have found petitioner

       guilty. R.C. 2953.23(A)(1)(a) and (b). Sandoval 3, 6th Dist. Sandusky No.

       S-11-042, 2012-Ohio-5806 at ¶ 5.

       {¶ 23} R.C. 2953.23(A)(2) also provides an exception with respect to DNA

evidence in felony convictions that does not apply to this appeal.

       {¶ 24} In the October 7, 2013 petition for postconviction relief, appellant asserted

four claims of ineffective assistance of counsel. He claimed that trial counsel was

deficient due to counsel’s (1) failure to adequately conduct a pretrial investigation to

discover evidence of appellant’s innocence (assignment of error No. 3), (2) failure to

secure expert defense witnesses to testify at trial (assignment of error No. 4), (3) failure

to object to admission of a photo into evidence at trial (assignment of error No. 5), and

(4) failure to act to preclude a detective from testifying at trial due to claimed bias of the

witness (assignment of error No. 6).

       {¶ 25} We have reviewed the record and it does not support a claim that appellant

was unavoidably prevented from discovery of the facts upon which these claims are

based. Claimed newly discovered evidence of Montez’s admission of guilt, alone is not




10.
evidence that trial counsel was deficient in his pretrial investigation in the case.

Appellant offered no evidence in support of his petition supporting a claim that he was

unavoidably prevented from discovery of facts to support a claim of ineffective assistance

of counsel on that basis. The other three ineffective assistance of counsel claims each

present issues of the type that could have been raised on direct appeal.

         {¶ 26} We conclude that that appellant’s petition for postconviction relief was

untimely under 2953.21(A)(2) and that no exception under R.C. 2953.23(A) applies.

Accordingly, we conclude the trial court lacked jurisdiction to consider appellant’s

October 7, 2013 petition for postconviction relief.

         {¶ 27} We find assignments of error No. 2, 3, 4, 5, and 6 not well-taken on that

basis.

         {¶ 28} The state also argues that assignments of error Nos. 4, 5, and 6 are also

barred by res judicata, as the grounds for relief could have been raised in appellant’s

direct appeal. We agree.

                Under the doctrine of res judicata, a final judgment of conviction

         bars a convicted defendant who was represented by counsel from raising

         and litigating in any proceeding except an appeal from that judgment, any

         defense or any claimed lack of due process that was raised or could have

         been raised by the defendant at the trial, which resulted in that judgment of




11.
       conviction, or on an appeal from that judgment. State v. Perry,10 Ohio

       St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

       {¶ 29} Assignments of error Nos. 4, 5, and 6 each could have been raised on direct

appeal. We find that res judicata bars appellant from asserting them now.

       {¶ 30} Under assignment of error No. 7, appellant argues that the trial court erred

in failing to conduct an evidentiary hearing on his petition for postconviction relief. We

conclude that this assignment of error is also barred on jurisdictional grounds as

appellant’s petition for postconviction relief was untimely under R.C. 2953.21(A)(2).

       {¶ 31} Furthermore, on the merits, a defendant is not automatically entitled to a

hearing on a petition for postconviction relief. State v. Calhoun, 86 Ohio St.3d 279, 282-

283, 714 N.E.2d 905 (1999). In Calhoun, the Ohio Supreme Court instructed:

              Before granting an evidentiary hearing on the petition, the trial court

       shall determine whether there are substantive grounds for relief (R.C.

       2953.21[C]), i.e., whether there are grounds to believe 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 States.” (Emphasis added.) R.C. 2953.21(A)(1). Id.

       {¶ 32} A trial court’s denial of a petition for postconviction relief without an

evidentiary hearing is reviewed on appeal under an abuse of discretion standard. The

term abuse of discretion connotes that “the court’s attitude is unreasonable, arbitrary, or




12.
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 33} Our review of the affidavit submitted by appellant in support of his petition

for postconviction relief and the record demonstrates that appellant failed to present

substantive grounds for relief that required a hearing. Accordingly, we conclude that the

trial court did not abuse its discretion in denying a hearing on appellant’s petition for

postconviction relief.

       {¶ 34} We find assignment of error No. 7 not well-taken.

       {¶ 35} Having found that the trial court did not commit error prejudicial to the

appellant, we affirm the judgments of the Sandusky County Court of Common Pleas in

both appeals. We order appellant to pay the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




13.
                                                                            State of Ohio
                                                                  v. Manuel Sandoval, Jr.
                                                                      S-13-032, S-13-034




Mark L. Pietrykowski, J.                      ____________________________
                                                      JUDGE
Thomas J. Osowik, J.
                                              ____________________________
Stephen A. Yarbrough, P.J.                            JUDGE
CONCUR.
                                              ____________________________
                                                      JUDGE




          This decision is subject to further editing by the Supreme Court of
      Ohio's Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court's web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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