[Cite as State v. Norris,

.] STATE OF OHIO, MONROE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 11 MO 4 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) DOWELL W. NORRIS ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Monroe County, Ohio Case No. 2005-297

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Elizabeth A. Matune Special Monroe County Prosecutor/ Assistant Attorney General Criminal Justice Section 150 East Gay Street, 16th Floor Columbus, Ohio 43215

For Defendant-Appellant: Dowell Norris, Pro se #537-122 Noble Correctional Institution 15708 McConnelsville Road Caldwell, Ohio 43724

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 8, 2013 [Cite as State v. Norris,

.] WAITE, J.

{¶1} Appellant Dowell W. Norris appeals the dismissal, without a hearing, of

a petition for postconviction relief. He was convicted and sentenced in 2006 on two

counts of illegal assembly or possession of chemicals for the manufacture of drugs.

He was sentenced to two consecutive five-year prison terms. He has had a direct

appeal and the judgment was affirmed, and he litigated a habeas petition in federal

court, which was denied. Appellant's petition for postconviction relief was not timely

filed according to the requirements of R.C. 2953.21(A)(2), and the trial court was

correct in dismissing the petition without a hearing. The statute requires the petition

to be filed within 180 days of the date that the trial transcript is filed with the court of

appeals, and Appellant did not file his petition until four years after that date. The

judgment of the trial court is affirmed.

Case History

{¶2} Appellant was indicted in the Monroe County Court of Common Pleas

on October 21, 2005, on two drug counts, violations of R.C. 2925.041(A). The

charges were based on Appellant's purchase of two gallons of iodine tincture, along

with fourteen boxes of Contac cold capsules and two boxes of Sudafed. These

products are used in the manufacture of methamphetamine. State v. Norris, 7th Dist.

No. 06 MO 5,

. He was convicted by a jury on April 28, 2006. He

filed a direct appeal on July 13, 2006. The transcript was filed with this Court on July

18, 2006 and his conviction and sentence were affirmed on December 12, 2007.

He filed an application to reopen the appeal, which was denied. He attempted a

further appeal to the Ohio Supreme Court, but the case was not accepted. 118 Ohio -2-

St.3d 1510,

,

. He also filed a petition for writ of

habeas corpus in federal court, but this was denied. Norris v. Warden, NCI, No.

2:08-CV-732,

(S.D.Ohio Apr 19, 2010).

{¶3} On April 29, 2011, Appellant filed a petition for postconviction relief

pursuant to R.C. 2953.21-23. On May 13, 2011, the trial court filed a judgment entry

denying the petition. No hearing was held on the matter. This appeal followed on

June 1, 2011. Appellant's two assignments of error are related and will be treated

together.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

TRIAL COURT COMMITTED PLAIN ERROR BY DENYING

APPELLANT [SIC] PETITION FOR POST-CONVICTION WITHOUT

PROVIDING FINDINGS OF FACTS AND CONCLUSIONS OF LAW

WITH RESPECT TO SUCH DISMISSAL.

TRIAL COURT COMMITTED PLAIN ERROR BY DENYING

APPELLANT’S POST-CONVICTION PETITION WITHOUT A

HEARING ON THE MERITS.

{¶4} This is an appeal of a dismissal of a petition for postconviction relief.

An appellate court reviews a trial court's denial of a petition for postconviction relief

under an abuse of discretion standard. State v. Gondor,

, 2006-

Ohio-6679,

. An abuse of discretion implies an arbitrary,

unreasonable, unconscionable attitude on the part of the trial court. Blakemore v.

Blakemore,

,

(1983). -3-

{¶5} Appellant’s two assignments of error are both related to the dismissal of

his petition. He argues that he should have had a hearing before the petition was

dismissed and that the trial court should have issued findings of facts and

conclusions of law as part of the dismissal. The crucial fact in this appeal is that

Appellant's petition was not filed within the 180-day period allowed by R.C.

2953.21(A)(2). As will be discussed below, once this deadline is missed, the trial

court has no jurisdiction to take any action other than dismissing the petition. In

support of his claim that the court should have issued findings of fact and conclusions

of law, Appellant cites R.C. 2953.21(C), which states: “If the court dismisses the

petition, it shall make and file findings of fact and conclusions of law with respect to

such dismissal.” Appellant fails to cite the equally relevant section of R.C.

2953.21(C) that states: “The court shall consider a petition that is timely filed * * *.”

(Emphasis added.) Findings of fact and conclusions of law are only required for

timely filed petitions. State ex rel. Reynolds v. Basinger,

, 2003-

Ohio-3631,

, ¶6. Appellant's petition was not filed within the time

frame established by R.C. 2953.21(A)(2), hence, the trial court had no authority

except to dismiss the petition.

{¶6} With respect to the failure to hold a hearing, R.C. 2953.21(C) states:

“Before granting a hearing on a petition filed under division (A) of this section, the

court shall determine whether there are substantive grounds for relief.” Once again,

if the petition is untimely filed, the court is without jurisdiction to hear the petition. -4-

There are no grounds for relief. Thus, no hearing is necessary or even permitted for

an untimely filed petition.

{¶7} A postconviction proceeding is not an appeal of a criminal conviction; it

is a collateral civil attack on the judgment. Gondor at ¶48; R.C. 2953.21(J). There is

no constitutional right to file a petition for postconviction relief, and the only rights

afforded to a defendant in postconviction proceedings are those specifically granted

by the legislature. State v. Steffan,

,

(1994);

R.C. 2953.21(J).

{¶8} Petitions for postconviction relief are governed by R.C. 2953.21 through

R.C. 2953.23. Pursuant to these statutes, any defendant who has been convicted of

a criminal offense and who claims to have experienced a denial or infringement of his

or her constitutional rights may petition the trial court to vacate or set aside the

judgment and sentence. R.C. 2953.21(A).

{¶9} R.C. 2953.21(A)(2) requires that a petition for postconviction relief “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.” The trial transcript in this matter

was filed on July 18, 2006. Therefore, Appellant was required to file his petition by

January 8, 2007. He filed his petition on April 29, 2011, more than four years too

late.

{¶10} The 180-day time period defined in R.C. 2953.21(A)(2) is jurisdictional:

“Unless the defendant makes the showings required by R.C. 2953.23(A), the trial

court lacks jurisdiction to consider either an untimely or a successive petition for -5-

postconviction relief. State v. Haschenburger, 7th Dist. No. 08-MA-223, 2009-Ohio-

6527, ¶12; State v. Palmer, 7th Dist. No. 08 JE 18,

; State v.

Beuke (1998),

,

.” State v. Butler, 7th Dist. No.

09 JE 1,

.

{¶11} Based on the plain language of R.C. 2953.21(A)(2), the only exception

to the 180-day requirement is found in R.C. 2953.23(A), which states:

(A) 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. -6-

(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.

{¶12} R.C. 2953.23(A)(1)(a) presents two avenues for relief from the 180-day

filing requirement, and Appellant must meet the requirements of one of those in order

for his arguments on appeal to have any merit. As Appellant does not claim to have

been “unavoidably prevented from discovery of the facts” to support his petition, he

must satisfy the second part of R.C. 2953.23(A)(1)(a) and demonstrate the existence

of some new federal or state right recognized by the United States Supreme Court

that applies retroactively to Appellant's situation. Appellant also needs to satisfy the

requirements of R.C. 2953.23(A)(1)(b), i.e., that no reasonable factfinder would have

found the petitioner guilty of the offense but for the constitutional error.

{¶13} Appellant’s explanation for the late filing of his petition appears to be

that new caselaw has arisen that now entitles him to relief. He cites the case of State

v. Johnson,

,

, which was decided on December

29, 2010. However, the effect of Johnson was to revise the law regarding how trial

courts determine if two offenses are allied in light of the allied offense statute. The

Johnson Court held: “When determining whether two offenses are allied offenses of -7-

similar import subject to merger under R.C. 2941.25, the conduct of the accused

must be considered.”

at syllabus.

{¶14} The Ohio Supreme Court in Johnson has no bearing on Appellant's

petition for postconviction relief. Johnson identified a change in the manner in which

a state law is interpreted and applied. It is not a United States Supreme Court case,

and thus, does not identify any new, retroactive, federal or state right recognized by

the United States Supreme Court. Appellant does not even mention any United

States Supreme Court case in his brief. Thus, he is precluded from relief under R.C.

2953.23(A)(1)(a).

{¶15} Further, the doctrine of res judicata defeats Appellant’s claims

regarding the application of the allied offense statute. The issue of merger of allied

offenses could have been raised on direct appeal, and his failure to raise it on direct

appeal prevents it from being raised in support of postconviction relief. See State v.

Timmons, 10th Dist. No. 11AP–895,

, ¶11, quoting State v. Rutledge,

10th Dist. No. 11AP-853,

, ¶13 (“even assuming that appellant's

petition had been timely, the trial court would have been barred from considering the

claims under the doctrine of res judicata as appellant's arguments with respect to

allied offenses and merger ‘under R.C. 2941.25 could have been resolved in

defendant's direct appeal’ ”).

{¶16} In conclusion, Appellant is challenging the dismissal of his petition for

postconviction relief. The petition was not filed within the 180-day time limit set forth

in R.C. 2953.21(A)(2), nor does it meet the requirements of any exception to that time -8-

limit. Because he did not meet the jurisdictional requirement for filing his petition, the

trial court had no authority to take any action other than to dismiss the petition. There

was no error in the trial court's failure to hold a hearing or failure to issue findings of

fact and conclusions of law. Appellant's two assignments of error are overruled and

the judgment of the trial court is affirmed.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.