[Cite as State v. Shepherd, 2014-Ohio-1736.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100660

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

CHARLES SHEPHERD

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-02-427416-A 

BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and E.A. Gallagher, J. 

RELEASED AND JOURNALIZED: April 24, 2014 
FOR APPELLANT

Charles Shepherd, pro se 

434-286 Grafton Correctional Institution 

2500 South Avon-Belden Road 

Grafton, Ohio 44044 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Mary H. McGrath 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN T. GALLAGHER, J.: 

{¶1} Defendant-appellant, Charles Shepherd (“Shepherd”), appeals the denial of 

his Civ.R. 60(B) motion for new trial. We find no merit to the appeal and affirm. 

{¶2} In 2002, Shepherd was charged with rape and attempted kidnapping. The 

charges included sexually violent predator, repeat violent offender, and sexually 

motivated specifications. At a jury trial, an investigating officer testified that Shepherd 

and the victim had a sexual relationship for a long period of time. Shepherd told police 

that he and the victim were “boyfriend and girlfriend” and that the sex was consensual. 

{¶3} However, the officer testified that the victim’s diminutive mental capabilities 

were immediately apparent to others and that the victim was incapable of consenting to a 

sexual relationship. “The victim had child-like interests, such as completing puzzles, 

coloring, watching television shows such as Clifford the Big Red Dog and Scooby Doo, 

and playing hide and seek with her best friend who was a child.” State v. Shepherd, 8th 

Dist. Cuyahoga No. 81926, 2003-Ohio-3356, ¶ 6. An expert witness testified that the 

victim’s mental age was that of a five-year-old. He further stated that the victim had an 

IQ of about 33 or 34 and that an IQ of 70 or below indicates severe mental retardation. 

{¶4} The jury found Shepherd guilty of rape and attempted kidnaping. The court 

found him guilty of the sexually violent predator, repeat violent offender, and sexually 

motivated specifications and sentenced Shepherd to 38 years to life in prison. This court 

affirmed Shepherd’s convictions and sentence. Shepherd at ¶ 1, 102. 
{¶5} In October 2013, Shepherd filed a motion for relief from judgment pursuant 

to Civ.R. 60(B). He attached an affidavit to the motion purportedly signed by the victim 

stating that she and Shepherd were lovers and that no rape ever occurred. The trial court 

treated the motion as a petition for postconviction relief and denied it as untimely. The 

court also struck the affidavit as having been improperly notarized. Shepherd now 

appeals and raises two assignments of error. 

Civ.R. 60(B)

{¶6} In the first assignment of error, Shepherd argues the trial court erred in 

dismissing his Civ.R. 60(B) motion for relief from judgment as an untimely petition for 

postconviction relief without a hearing. 

{¶7} Civ.R. 60(B), a rule of civil procedure, is sometimes applied to criminal cases 

by reference to Crim.R. 57(B), which allows the trial court to apply the Rules of Civil 

Procedure when no applicable Rule of Criminal Procedure exists. Crim.R. 35 and R.C. 

2953.21 provide the procedure for seeking postconviction relief. R.C. 2953.21(J) 

expressly states that it provides “the exclusive remedy by which a person may bring a 

collateral challenge to the validity of a conviction or sentence in a criminal case.” Thus, 

R.C. 2953.21 precludes Shepherd from challenging his conviction under Civ.R. 60(B). 

Cleveland v. Palik, 8th Dist. Cuyahoga No. 96760, 2011-Ohio-6082, ¶ 4. In these 

circumstances, a trial court may recast a motion for relief from judgment filed pursuant to 

Civ.R. 60(B) as a petition for postconviction relief. State v. Schlee, 117 Ohio St.3d 153, 

2008-Ohio-545, 882 N.E.2d 431, syllabus. Therefore, the trial court did not err in 
treating Shepherd’s motion for relief from judgment as a petition for postconviction 

relief. 

{¶8} The trial court denied Shepherd’s petition for postconviction relief as 

“improper under the rules and untimely.” Shepherd contends the court erred in denying 

his petition without a hearing. However, a trial court is not required to hold a hearing on 

a petition for postconviction relief if the record and the petition fail to show that the 

defendant is entitled to relief. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 

(1999), paragraph two of the syllabus. 

{¶9} R.C. 2953.21, which governs postconviction relief petitions, requires the 

petitioner file a petition no later than 180 days after the date on which the trial transcript 

is filed in the court of appeals in the direct appeal of the conviction, or if no appeal is 

taken, no later than 180 days after the expiration of time for filing the appeal. R.C. 

2953.21(A)(2). The time limit for filing a motion for postconviction relief is 

jurisdictional. State v. Johns, 8th Dist. Cuyahoga No. 93226, 2010-Ohio-162, ¶ 8, and a 

trial court generally has no authority to consider an untimely filed petition for 

postconviction relief. State v. Hutton, 8th Dist. Cuyahoga No. 80763, 2007-Ohio-5443, ¶ 

23. 

{¶10} The trial court may nevertheless consider an untimely petition for 

postconviction relief if (1) the petitioner demonstrates that he was unavoidably prevented 

from discovering the facts on which he relies in the petition, or (2) that the United States 

Supreme Court has, since his last petition, recognized a new federal or state right that 
applies retroactively to the petitioner. R.C. 2953.23(A)(1)(a). Further, the petitioner 

must show by clear and convincing evidence that a reasonable factfinder would not have 

found him guilty but for constitutional error at trial. R.C. 2953.23(A)(1)(b). 

{¶11} In this case, Shepherd’s petition was filed over ten years after he filed the 

trial transcript in his direct appeal. Because Shepherd filed his petition outside the 

statutory 180-day limitations period, the petition is untimely, and Shepherd failed to 

demonstrate that he was unavoidably prevented from discovering facts relating to his 

petition or that any new federal or state right retroactively applies to him. Therefore, 

because his petition was filed beyond the statutory deadline, and none of the exceptions to 

the statutory time limitation were established, the trial court properly denied Shepherd’s 

petition as untimely. 

{¶12} Accordingly, the first assignment of error is overruled. 

Victim’s Affidavit

{¶13} In the second assignment of error, Shepherd argues the trial court erred in 

dismissing his petition for postconviction relief without considering the affidavit attached 

to the petition. The court struck the petition as “improperly notarized.” 

{¶14} The affidavit contained a purported statement by the victim in which she 

averred that she was Shepherd’s “girlfriend” and “lover” for years and was “coerced into 

making statements that were untrue and involved unfounded facts and fabrications about 

a rape that never happened.” The affidavit contains the victim’s signature as well as a 
statement from Shepherd in which he “swears” he received the affidavit from the victim 

on September 20, 2013. A notary’s signature appears below Shepherd’s signature and 

acknowledges that the victim and Shepard’s signatures were “subscribed” in the notary’s 

presence on September 25, 2013. The notary’s acknowledgment conflicts with 

Shepard’s “sworn” statement that he received the affidavit already signed by the victim 

on September 20, 2013. Thus, the affidavit fails to comply with the requirements of R.C. 

147.53, which requires the notary acknowledge the witness’s signature in her presence at 

the time of notarization. Therefore, the trial court properly concluded that the affidavit 

was not properly notarized. 

{¶15} Furthermore, evidence in the record indicates the victim was incapable of 

understanding the statements presented in the affidavit. As previously stated, the victim 

is a severely handicapped and mentally retarded woman. There was expert evidence 

presented at trial that she had a mental capacity of a five year old. Therefore, the trial 

court had good reason to believe the victim’s purported statement was unreliable. 

Moreover, Shepherd’s representation that his relationship with the victim was that of 

“boyfriend and girlfriend” was previously presented at trial and rejected. 

{¶16} Therefore, the second assignment of error is overruled. 

{¶17} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

EILEEN T. GALLAGHER, JUDGE 

SEAN C. GALLAGHER, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR