[Cite as State v. Tayse, 2013-Ohio-5801.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                         C.A. No.      27050

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
JAMES TAYSE aka JIMMY LEE TAYSE                       COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 07 04 1285

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2013



        CARR, Judge.

        {¶1}     Appellant, James Tayse, appeals the judgment of the Summit County Court of

Common Pleas denying his petition for post-conviction relief. This Court affirms.

                                                 I.

        {¶2}     In 2007, Tayse was convicted of a litany of offenses including rape, kidnapping,

felonious assault, and aggravated robbery, along with multiple sexually violent predator and

repeat violent offender specifications. Tayse filed a direct appeal to this Court and raised three

assignments of error. On March 18, 2009, this Court affirmed all but one of Tayse’s convictions.

State v. Tayse, 9th Dist. Summit No. 23978, 2009-Ohio-1209.

        {¶3}     After his convictions were affirmed by this Court, Tayse filed numerous motions

in the trial court challenging his convictions, including a motion to dismiss on the basis of newly

discovered evidence filed on March 16, 2011, and a second motion to dismiss on the basis of
                                                 2


newly discovered evidence on August 11, 2011. All of these motions were denied by the trial

court.

         {¶4}   On July 29, 2013, Tayse filed a petition to vacate or set aside sentence, and

requested a hearing on his petition. The State filed a response in opposition to the petition. On

August 7, 2013, the trial court issued a journal entry denying the petition.

         {¶5}   On appeal, Tayse raises four assignments of error.

                                                 II.

                                 ASSIGNMENT OF ERROR I

         THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THE
         PETITION UNTIMELY.

                                 ASSIGNMENT OF ERROR II

         THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT
         APPELLANT’S CLAIMS WERE BARRED BY THE DOCTRINE OF RES
         JUDICATA.

                                ASSIGNMENT OF ERROR III

         THE TRIAL COURT ABUSED ITS DISCRETION IN                               DENYING
         APPELLANT’S PETITION FOR POST-CONVICTION RELIEF.

                                ASSIGNMENT OF ERROR IV

         THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
         APPELLANT A[N] EVIDENTIARY HEARING.

         {¶6}   In his four assignments of error, Tayse argues that the trial court abused its

discretion in denying his petition for post-conviction relief. This Court disagrees.

         {¶7}   Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief must be filed

no later than 180 days after the day the trial transcript is filed in the direct appeal from the

judgment of conviction and sentence, or, if no direct appeal is taken, 180 days after the

expiration of the time to file an appeal. See App.R. 3(A) and 4(A). A trial court is not permitted
                                                 3


to entertain a petition that is filed after the timeframe unless the conditions of R.C.

2953.23(A)(1) or (A)(2) are met. State v. Hoffmeyer, 9th Dist. Summit No. 25477, 2011-Ohio-

1046, ¶ 7; R.C. 2953.23(A). Specifically, R.C. 2953.23(A) states:

       Whether a hearing is or is not held on a petition filed pursuant to section 2953.21
       of the Revised Code, a court may not entertain a petition filed after the expiration
       of the period prescribed in division (A) of that section or a second petition or
       successive petitions for similar relief on behalf of a petitioner unless division
       (A)(1) or (2) of this section applies:

       (1) Both of the following apply:

       (a) Either 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, subsequent to the period prescribed in division (A)(2) of section
       2953.21 of the Revised Code or to the filing of an earlier petition, the United
       States Supreme Court recognized a new federal or state right that applies
       retroactively to persons in the petitioner’s situation, and the petition asserts a
       claim based on that right.

       (b) The 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 or, if the
       claim challenges a sentence of death that, but for constitutional error at the
       sentencing hearing, no reasonable factfinder would have found the petitioner
       eligible for the death sentence.

       (2) The petitioner was convicted of a felony, the petitioner is an offender for
       whom DNA testing was performed under sections 2953.71 to 2953.81 of the
       Revised Code or under former section 2953.82 of the Revised Code and analyzed
       in the context of and upon consideration of all available admissible evidence
       related to the inmate’s case as described in division (D) of section 2953.74 of the
       Revised Code, and the results of the DNA testing establish, by clear and
       convincing evidence, actual innocence of that felony offense or, if the person was
       sentenced to death, establish, by clear and convincing evidence, actual innocence
       of the aggravating circumstance or circumstances the person was found guilty of
       committing and that is or are the basis of that sentence of death.

       {¶8}    In support of his petition, Tayse argued that the trial court erred by failing to

dismiss for improper venue, that the State withheld exculpatory evidence, and that he was not

afforded counsel at his 2007 arraignment. Tayse did not, however, address why he had not

raised the issues in his petition at an earlier time, nor did he demonstrate that he was unavoidably
                                                 4


prevented from discovering the facts pertinent to his claims. While Tayse purportedly attached

an affidavit of a potential witness to his petition, he did not explain how he had been unavoidably

prevented from discovering that information until the time he filed his petition on July 29, 2013.

        {¶9}    Under these circumstances, we agree with the trial court to the extent that it

concluded that the petition was untimely. Tayse’s petition was filed more than five years after

his conviction, well outside the 180-day window outlined in R.C. 2953.21(A)(2). In his petition,

Tayse neither demonstrated that he was unavoidably prevented from discovering the facts upon

which he must rely to present his claim, nor did he claim a new retroactive right that has been

recognized by the United States Supreme Court. See R.C. 2953.23(A)(1). As Tayse failed to

comply with the requirements set forth in R.C. 2953.23(A), the trial court was without authority

to entertain the merits his petition.

        {¶10} Tayse’s assignments of error are overruled.

                                                III.

        {¶11} Tayse’s four assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




        There were reasonable grounds for this appeal.

        We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

        Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
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period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



MOORE, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

JAMES TAYSE, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
