[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. 
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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 
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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 
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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-Ohio1871, ¶ 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: 
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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. 
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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. 
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APPEARANCES: 

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

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

Prosecuting Attorney, for Appellee.