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

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNT Y 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: Januar y 24, 2022 Jud g ment: 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, 6851 8 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 p etition 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 accepte d the plea and sentenced Weir to an aggregate prison term of ten years pursuant to a sti pulated sentencing recommendation. Weir appealed the sentence, and this court aff irmed in State v. Weir , 11th Dist. Ashtabula No. 2017-A-0039, 2018-Ohio-2827.2

Case No. 2021-A-0019 {¶3} On July 2, 2021, Weir filed a petition for postconviction relie f. 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 le tter 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 atto rney 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 re quests for judicial release, and he never grants them for stipulated sentences.” Weir maint ained 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 bac k to the Judgment Entry from your plea and sentencing hearing, you are correct in understand ing 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 no t grant him release, he would not have pleaded guilty. {¶4} Further, in his petition, Weir asserted newly discovered eviden ce that

defense counsel was aware of a conflict of interest that she fa iled to pursue. Weir alleged that a corrections officer employed at the Ashtabula County Jai l is the father of the victim of a prior voyeurism charge brought against Weir. Weir maintai ned that, in the present case, he explained to defense counsel that he believed he was b eing held in Lake County3

Case No. 2021-A-0019 Jail instead of Ashtabula County Jail due to the father’s emplo yment at the latter jail. Weir attached the second and third page of a letter from defense cou nsel, in which the recipient was not named, that provided a timeline of her representation o f Weir. In the timeline, defense counsel stated that on August 15, 2016, Weir informed h er that he was being held at the Lake County Jail for reasons unknown. Defense coun sel 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 (Ashtabul a 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 allege d in his petition that the state withheld exculpat ory evidence by failing to disc lose 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 a pply the seriousness and recidivism sentencing factors to his case. Wei r argued that the court did not have any knowledge of mitigating factors due to defense cou nsel failing to provide the

court with favorable evidence an d the trial court failing to co nduct a presentence investigation. {¶7} The trial court overruled the petition without hearing. The tr ial court determined that the letter containing the public defender’s vie w 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 c ourt concluded that it was4

Case No. 2021-A-0019 “little more than wishful speculation” that the alleged conflic t was “exculpatory.” The court further determined that because no newly discovered evidence ex isted, “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 o f 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 witho ut 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 t hat there was such a denial or infringement of the person’s rights as to render the judgmen t 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 transcrip t 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 [h e] 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 cle ar and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the5

Case No. 2021-A-0019 petitioner guilty of the offense of which the petitioner was co nvicted[.]’” 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 consi der his petition because: Weir had no knowledge of the law during his initial court proce edings and relied solely on trial counsel; trial counsel was “deceitful” and ineffective; t he prosecution withheld a key piece of exculpatory evidence regarding the conflict of interes t; “information concerning judicial release in respect to trial judge that was not known p rior to acceptance of plea, would have affected [Weir’s] plea decision[;]” and the court di d 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 relie s or that the Supreme Court recognized a new right with retroactive application. Alt hough not specifically addressed in the context of timeliness, the trial court noted t hat Weir relied on “newly discovered evidence” in the form of a letter from the public de fender’s office. However, this letter, as well as the responsive letter from defense coun sel, 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. Furt her, as the trial court noted, Weir has not yet filed for judicial release, and he affi rmed his understanding that the decision to grant judicial release was within the discretio n of the court.6

Case No. 2021-A-0019 {¶13} Moreover, the alleged conflict of interest pertained to a confl ict between an employee at the jail and Weir, and Weir submitted no evidence t hat such a conflict had any bearing on the present case. Additionally, the alleged con flict was known to Weir in 2016 pursuant to the documents he submitted in support of his p etition. {¶14} As the petition was untimely, and Weir failed to establish he w as unavoidably prevented from discovery of facts on which he relie s, 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 secon d assigned error lacks merit. We need not address Weir’s first assigned error pertain ing to whether Weir’s arguments were barred by res judicata, as our disposition of th e 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.