[Cite as State v. Weir, 2022-Ohio-163.]

IN THE COURT OF APPEALS OF OHIO 

ELEVENTH APPELLATE DISTRICT 

ASHTABULA COUNTY

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - v - 

KEVIN A. WEIR, 

 Defendant-Appellant. 

CASE NO. 2021-A-0019

Civil Appeal from the 

Court of Common Pleas 

Trial Court No. 2016 CR 00465 

O P I N I O N 

Decided: January 24, 2022 

Judgment: Affirmed 

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant 

Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee). 

Kevin A. Weir, pro se, PID# A691-188, Belmont Correctional Institution, 68518 Bannok 

Road, P.O. Box 540, St. Clairsville, OH 43950 (Defendant-Appellant). 

THOMAS R. WRIGHT, P.J. 

{¶1} Appellant, Kevin A. Weir, appeals the judgment overruling his petition for 

postconviction relief. We affirm. 

{¶2} In 2016, Weir, represented by counsel, pleaded guilty to eight counts of 

pandering obscenity involving a minor. The trial court accepted the plea and sentenced 

Weir to an aggregate prison term of ten years pursuant to a stipulated sentencing 

recommendation. Weir appealed the sentence, and this court affirmed in State v. Weir, 

11th Dist. Ashtabula No. 2017-A-0039, 2018-Ohio-2827. 
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{¶3} On July 2, 2021, Weir filed a petition for postconviction relief. In his petition, 

Weir maintained that there existed newly discovered evidence of ineffective assistance 

of defense counsel. In support, Weir attached a letter from an attorney with the public 

defender’s office and a letter from defense counsel. In the letter from the public 

defender’s office, the attorney stated that she was responding to Weir’s inquiry regarding 

representation to file a motion for judicial release. The attorney included her opinion that 

“although you are eligible for judicial release, you entered a stipulated plea and sentence 

of 10 years before Judge Harris. Judge Harris rarely grants requests for judicial release, 

and he never grants them for stipulated sentences.” Weir maintained that he copied this 

letter to defense counsel. Defense counsel replied in a letter stating, in relevant part, 

“The information contained in the additional correspondence you received from the Public 

Defender’s office * * * I was not aware of and if you refer back to the Judgment Entry from 

your plea and sentencing hearing, you are correct in understanding that your sentence is 

a negotiated plea and sentence, but not a mandatory sentence. Therefore, you are 

eligible to apply for judicial release.” In his petition, Weir relied on the public defender’s 

opinion regarding the trial judge’s stance on judicial release, and he argued that had 

defense counsel alerted him to the fact that the judge would not grant him release, he 

would not have pleaded guilty. 

{¶4} Further, in his petition, Weir asserted newly discovered evidence that 

defense counsel was aware of a conflict of interest that she failed to pursue. Weir alleged 

that a corrections officer employed at the Ashtabula County Jail is the father of the victim 

of a prior voyeurism charge brought against Weir. Weir maintained that, in the present 

case, he explained to defense counsel that he believed he was being held in Lake County 
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Jail instead of Ashtabula County Jail due to the father’s employment at the latter jail. Weir 

attached the second and third page of a letter from defense counsel, in which the recipient 

was not named, that provided a timeline of her representation of Weir. In the timeline, 

defense counsel stated that on August 15, 2016, Weir informed her that he was being 

held at the Lake County Jail for reasons unknown. Defense counsel recalled that while 

discussing the case with an assistant prosecutor at the end of that month, she inquired 

as to why Weir was being held in Lake County and was told that there was “some sort of 

conflict of interest” for him to be held in Jefferson (Ashtabula County). Defense counsel 

indicated that when she informed Weir of this discussion, Weir stated that he believed the 

conflict pertained to a family connection in a separate case. 

{¶5} Moreover, with respect to the conflict of interest, Weir alleged in his petition 

that the state withheld exculpatory evidence by failing to disclose the factual basis of the 

conflict. Weir argued that the conflict arose from the state’s motivation to retaliate for a 

crime against the daughter of an “associate.” 

{¶6} Weir further maintained that the trial court did not properly apply the 

seriousness and recidivism sentencing factors to his case. Weir argued that the court did 

not have any knowledge of mitigating factors due to defense counsel failing to provide the 

court with favorable evidence and the trial court failing to conduct a presentence 

investigation. 

{¶7} The trial court overruled the petition without hearing. The trial court 

determined that the letter containing the public defender’s view as to the court’s position 

on judicial release and the purported conflict of interest were not newly discovered 

evidence of ineffective assistance of counsel. Moreover, the court concluded that it was 
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“little more than wishful speculation” that the alleged conflict was “exculpatory.” The court 

further determined that because no newly discovered evidence existed, “the issue of 

ineffective assistance of counsel is barred by res judicata.” 

{¶8} In his two assigned errors, Weir contends: 

[1.] Trial court erred in claiming a conflict of interest was a

matter of record when it was not, which resulted in violation of 

appellant’s right to due process guaranteed by the 5th and 

19th Amendments to the U.S. Constitution. 

[2.] Trial court erred in overruling defendant’s petition without 

a hearing when there was [sic] significant issues of merit to 

support post-conviction relief pursuant to R.C. 2953.21 & 

2953.23(A)(1). 

{¶9} The postconviction relief statute, R.C. 2953.21, provides, “Any person who 

has been convicted of a criminal offense * * * 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 postconviction 

petition “asking the court to vacate or set aside the judgment or sentence * * *.” R.C. 

2953.21(A)(1)(a)(i). 

{¶10} Postconviction petitions “filed under R.C. 2953.21(A)(1) shall be filed within 

three hundred sixty-five days after the filing of the transcript in a direct appeal.” State v. 

Garner, 11th Dist. Lake No. 2018-L-057, 2018-Ohio-4661, ¶ 13, citing R.C. 2953.21(A)(2). 

If the petitioner fails to meet this deadline, “the petitioner must show that ‘[h]e was 

unavoidably prevented from discovery of the facts upon which [he] must rely to present 

the claim for relief, or, * * * the United States Supreme Court recognized a new federal or 

state right that applies retroactively’ and demonstrate ‘by clear and convincing evidence 

that, but for constitutional error at trial, no reasonable factfinder would have found the 
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petitioner guilty of the offense of which the petitioner was convicted[.]’” Garner at ¶ 13, 

quoting R.C. 2953.23(A)(1)(a) and (b). 

{¶11} Here, Weir filed his petition significantly later than 365 days past the filing 

of the transcript in his direct appeal. In his petition, Weir argued that despite being filed 

outside the time limits provided by law, the court should consider his petition because: 

Weir had no knowledge of the law during his initial court proceedings and relied solely on 

trial counsel; trial counsel was “deceitful” and ineffective; the prosecution withheld a key 

piece of exculpatory evidence regarding the conflict of interest; “information concerning 

judicial release in respect to trial judge that was not known prior to acceptance of plea, 

would have affected [Weir’s] plea decision[;]” and the court did not properly consider the 

statutory sentencing factors. 

{¶12} None of Weir’s reasons for untimely filing advance an argument that he was 

unavoidably prevented from discovery of facts on which he relies or that the Supreme 

Court recognized a new right with retroactive application. Although not specifically 

addressed in the context of timeliness, the trial court noted that Weir relied on “newly 

discovered evidence” in the form of a letter from the public defender’s office. However, 

this letter, as well as the responsive letter from defense counsel, do not contain “facts.” 

Instead, the letters contain the opinion of the public defender that the trial court judge 

would not grant him judicial release despite his eligibility to petition for release and 

defense counsel’s statement that she was unaware of this. Further, as the trial court 

noted, Weir has not yet filed for judicial release, and he affirmed his understanding that 

the decision to grant judicial release was within the discretion of the court. 
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{¶13} Moreover, the alleged conflict of interest pertained to a conflict between an 

employee at the jail and Weir, and Weir submitted no evidence that such a conflict had 

any bearing on the present case. Additionally, the alleged conflict was known to Weir in 

2016 pursuant to the documents he submitted in support of his petition. 

{¶14} As the petition was untimely, and Weir failed to establish he was 

unavoidably prevented from discovery of facts on which he relies, on this basis alone the 

trial court did not err in failing to grant relief. See, e.g., State v. Mayle, 11th Dist. Ashtabula 

No. 2017-A-0065, 2018-Ohio-2576, ¶ 11. Therefore, Weir’s second assigned error lacks 

merit. We need not address Weir’s first assigned error pertaining to whether Weir’s 

arguments were barred by res judicata, as our disposition of the second assigned error 

renders the first assigned error moot. See App.R. 12(A)(1)(c). 

{¶15} Accordingly, the judgment is affirmed. 

CYNTHIA WESTCOTT RICE, J., 

JOHN J. EKLUND, J., 

concur.