[Cite as In re D.J., 2019-Ohio-2988.]


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

IN RE: D.J.                                           C.A. No.       29119



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DL-11-11-2532

                                 DECISION AND JOURNAL ENTRY

Dated: July 24, 2019



        CALLAHAN, Presiding Judge.

        {¶1}     Appellant, D.J., appeals the decision of the Summit County Court of Common

Pleas, Juvenile Division, that dismissed his petition for postconviction relief without a hearing.

This Court affirms.

                                                 I.

        {¶2}     In 2012, D.J. was adjudicated delinquent by virtue of committing rape, a violation

of R.C. 2907.02(A)(1)(b), and murder, a violation of R.C. 2903.02(B). The charges arose out of

the rape and subsequent death of D.J.’s three-year-old sister, M.R.J., following a period of time

in which she was in his care. D.J. was fifteen years old at the time of the offense. The juvenile

court found that D.J. was a serious youthful offender and committed him to the custody of the

Ohio Department of Youth Services (“ODYS”) through his twenty-first birthday. The juvenile

court also imposed an adult sentence on the rape charge of life imprisonment with parole

eligibility after twenty-five years pursuant to R.C. 2907.02(B), R.C. 2971.03(A)(2), and R.C.
                                                2


2152.13(D)(1)(a), but stayed the adult portion of the sentence pending D.J.’s completion of the

juvenile disposition. D.J. filed, but voluntarily dismissed, an appeal from his adjudication and

disposition.

       {¶3}    During the juvenile portion of his disposition, D.J. appeared before the juvenile

court for periodic dispositional reviews. During these reviews, the juvenile court made findings

that reflected a mixed view of his progress. On October 7, 2016, the State moved to invoke the

adult portion of D.J.’s sentence, arguing that he had not engaged in sex offender treatment while

in the custody of ODYS. Because D.J. was within two months of his twenty-first birthday, the

State also moved for an expedited hearing on the motion. The juvenile court granted the motion

to invoke the adult sentence on November 22, 2016, five days before D.J.’s twenty-first birthday.

In granting the motion, the juvenile court emphasized D.J.’s failure to participate in sex offender

programming until January 2016 and his “superficial” participation thereafter. The juvenile

court noted that “[D.J.]’s defiance and failure to timely engage in treatment constitutes conduct

that demonstrates that [D.J.] has not been rehabilitated during the course of his ODYS

commitment and cannot complete treatment so that he can safely enter the community in the few

days that remain before his 21st birthday.” On November 23, 2016, the trial court imposed the

adult portion of D.J.’s sentence.

       {¶4}    D.J. appealed the juvenile court’s order that granted the State’s motion to invoke

the adult portion of his sentence. The transcript in that direct appeal was filed with the clerk of

this Court on January 27, 2017. On January 31, 2018, while that appeal was pending, D.J.

petitioned the juvenile court for postconviction relief, asserting five claims for relief. The

juvenile court did not take any action on the petition while the direct appeal was pending in this

Court. On February 13, 2018, this Court affirmed the juvenile court’s order that granted the
                                                   3


State’s motion to invoke the adult portion of D.J.’s sentence. In re D.J., 9th Dist. Summit No.

28472, 2018-Ohio-569. On February 28, 2018, the juvenile court determined that upon its initial

review of the petition, D.J. would be allowed an evidentiary hearing on claims one, two, four,

and five, but not on claim three. The juvenile court also ordered the parties to submit briefs on

claims one, two, and four. The State moved to dismiss the petition, arguing that all of D.J.’s

claims for relief were barred by res judicata or otherwise without merit. In response, D.J.

conceded that claims three and four could have been raised on direct appeal.

        {¶5}       On June 29, 2018, the juvenile court ruled on D.J.’s remaining claims for relief

without having conducted an evidentiary hearing, concluding that each was barred by res

judicata. D.J. filed this appeal. After oral argument on April 2, 2019, this Court stayed the

appeal and remanded it to the juvenile court under App.R. 9(E) so that the clerk could certify and

transmit the complete record. Approximately sixty days later, the clerk filed the record from the

juvenile court in this appeal. On June 17, 2019, this Court reactivated the appeal and submitted

it for decision.

                                                  II.

                                    ASSIGNMENT OF ERROR

        THE TRIAL COURT ERRED IN DISMISSING CLAIMS ONE, TWO, AND
        FIVE OF [D.J.]’S POST-CONVICTION PETITION ON RES JUDICATA
        GROUNDS, BECAUSE THE CLAIMS RELIED UPON EVIDENCE OUTSIDE
        THE RECORD.

        {¶6}       In his only assignment of error, D.J. argues that the juvenile court erred by

concluding that each of his claims for relief was barred by res judicata. This Court concludes

that D.J. did not comply with the timeliness requirements set forth in R.C. 2953.21(A)(2),

however, so the juvenile court lacked jurisdiction to consider his untimely petition. See State v.

Jones, 10th Dist. Franklin No. 18AP-578, 2019-Ohio-1014, ¶ 12 (noting that a court of appeals
                                                   4


may address jurisdictional issues arising under R.C. 2953.21(A)(2) when the trial court rules on

another basis).

       {¶7}       Under R.C. 2953.21(A)(1)(a),

       [a]ny person who has been * * * adjudicated a delinquent child and 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 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.

The timeliness constraints for filing a petition for postconviction relief are described in R.C.

2953.21(A)(2), which provides that a petition for postconviction relief must be filed within 365

days of the date on which the transcript is filed in a direct appeal or, if no direct appeal is taken,

within 365 days of the expiration of the time for filing an appeal. The 365-day period for filing

is triggered when the certified, written transcript of the proceedings in the trial court is filed in

the court of appeals. See State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, ¶ 30 (applying

the 180-day time limit set forth in former R.C. 2953.21(A)(2)). Because the time limit is

triggered by the filing of the transcript in the direct appeal and not by service of any notice by

mail or commercial carrier, the three-day mailing rule set forth in Civ.R. 6(D) does not operate to

extend the time for filing. See Lumbog v. Suansing, 9th Dist. Summit No. 29135, 2019-Ohio-

1871, ¶ 9, citing Pogacsnik v. Jewett, 9th Dist. Lorain No. 91CA005216, 1992 WL 181011, *2

(July 29, 1982) (“Civ.R. 6(D) applies only where the period for filing begins after the service of

notice, and notice is served by mail.”). See also State v. Garrett, 7th Dist. Belmont No. 06 BE

67, 2007-Ohio-7212, ¶ 14 (concluding that former Civ.R. 6(E) did not apply to the timelines set

forth in R.C. 2953.21(A)(2)).

       {¶8}       A trial court may only entertain an untimely petition when:
                                                  5


       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.

R.C. 2953.23(A)(1)(a). A petitioner, other than one who challenges a sentence of death, must

also demonstrate 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)(b). A trial court does not have jurisdiction to

hear an untimely petition for postconviction relief unless the requirements of R.C. 2953.23(A)

are met. State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9.

       {¶9}    The trial court granted the motion to invoke the adult portion of D.J.’s sentence on

November 22, 2016. The transcript in D.J.’s direct appeal from that order was filed with the

clerk of this Court on January 27, 2017, so under R.C. 2953.21(A)(2), he had until January 27,

2018, to petition for postconviction relief. Because that date was a Saturday, the deadline for

filing his petition fell on Monday, January 29, 2018. See Civ.R. 6(A). D.J., however, did not file

his petition until Wednesday, January 31, 2018. He did not demonstrate by clear and convincing

evidence that the requirements of R.C. 2953.23(A)(1) were met. Consequently, the juvenile

court did not have jurisdiction to entertain his untimely petition. See Daniel at ¶ 9. See also

Garrett at ¶ 13; State v. Buckwald, 9th Dist. Lorain No. 98CA007267, 2000 WL 1859845, *1

(Dec. 20, 2000).

       {¶10} Because the juvenile court did not have jurisdiction to entertain D.J.’s untimely

petition for postconviction relief, his sole assignment of error is overruled.
                                                 6


                                                III.

       {¶11} D.J.’s assignment of error is overruled. The judgment of the Summit County

Juvenile Court 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

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.




                                                       LYNNE S. CALLAHAN
                                                       FOR THE COURT



CARR, J.
HENSAL, J.
CONCUR.
                                          7


APPEARANCES:

JENNIFER M. KINSLEY, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
