[Cite as State v. Wolff, 2012-Ohio-5575.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

JOHN E. WOLFF, JR., 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10-MA-184 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 06CR978 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant John E. Wolff, Jr. 

#A533-806 

Mansfield Correctional Institution 

P.O. Box 788 

Mansfield, Ohio 44901 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: November 29, 2012 
[Cite as State v. Wolff, 2012-Ohio-5575.]

DONOFRIO, J. 

{¶1} Defendant-appellant John E. Wolff, Jr. appeals a decision of the 

Mahoning County Common Pleas Court which granted summary judgment to 

plaintiff-appellee State of Ohio on his petition for post-conviction relief, dismissing it 

without an evidentiary hearing. 

{¶2} Wolff was convicted by a jury of sixteen counts of rape and nine counts 

of gross sexual imposition, stemming from offenses committed against his two minor 

step-daughters. On August 29, 2007, the trial court sentenced Wolff to nine 

consecutive life sentences, five consecutive ten-year sentences, five consecutive 

five-year sentences, two consecutive sets of concurrent eighteen-month sentences 

and merged the remaining convictions. 

{¶3} In his direct appeal, Wolff raised six assignments of error, addressing 

the sufficiency of the evidence regarding force and substantial impairment, the 

barring of evidence through the Rape Shield Statute, the prevention of crossexamination of the victims, the admission of hearsay statements, and prejudicial 

joinder of victims. On June 9, 2009, this court affirmed the judgment of the trial court, 

finding five of Wolff’s assignments of error to be meritless, and one assignment of 

error to have been mooted by the merger of two of Wolff’s convictions. State v. Wolff, 

7th Dist. No. 07 MA 166, 2009-Ohio-2897. This court also denied Wolff’s application 

to reopen his direct appeal. State v. Wolff, 7th Dist. No. 07 MA 166, 2009-Ohio-7085. 

{¶4} On July 21, 2010, Wolff filed a pro se petition in the trial court styled 

“PETITION TO VACATE OR SET ASIDE SENTENCE (EVIDENTIARY HEARING 

REQUESTED).” He alleged four grounds for relief in his petition. Three of the 

grounds alleged ineffective assistance of trial counsel for failing to adequately raise 

arguments related to the Rape Shield Statute, failing to investigate the competency 

of one of the victims, and failing to consult with and call to trial a sexual abuse expert. 

The fourth ground alleged that the prosecution withheld and concealed exculpatory 

evidence. The state moved for summary judgment arguing that Wolff’s petition was 

untimely, and in the alternative, failed on its merits. On November 9, 2010, the trial 

court granted the state’s motion, without explanation. This appeal followed. 
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{¶5} Wolff, still proceeding pro se, raises four assignments of error. Wolff’s 

first assignment of error states: 

[T]he trial court abused its discretion when it determined that the 

appellant was not unavoidably prevented from discovering facts to allow 

an untimely petition. 

{¶6} “Where a criminal defendant, subsequent to his or her direct appeal, 

files a motion seeking vacation or correction of his or her sentence on the basis that 

his or her constitutional rights have been violated, such a motion is a petition for 

postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 

158, 679 N.E.2d 1131, (1997) syllabus. Wolff’s petition fulfills the definition of a 

petition for postconviction relief: (1) the motion was filed after his direct appeal; (2) he 

seeks to vacate his sentence as void, and; (3) in the petition, he alleged that his 

constitutional rights were violated and that the trial court sentenced him without 

appropriate jurisdiction. Therefore, Wolff’s petition is properly construed as a petition 

for postconviction relief. 

{¶7} Next, this court must address the trial court’s jurisdiction to entertain the 

merits of Wolff’s petition. The requirement that a petition for postconviction relief be 

filed timely is jurisdictional. R.C. 2953.23(A) (“a court may not entertain a petition filed 

after the expiration of the period prescribed [in R.C. 2953.21]”). Unless the petition is 

filed timely, the court is not permitted to consider the substantive merits of the 

petition. State v. Beaver, 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (11th 

Dist.1998) (the trial court should have summarily dismissed appellant’s untimely 

petition without addressing the merits). 

{¶8} If a postconviction relief petition is filed beyond the 180-day time 

limitation or the petition is a second or successive petition for postconviction relief, 

R.C. 2953.23(A) precludes the court from entertaining the petition unless: (1) the 

petitioner shows that he was unavoidably prevented from discovering the facts upon 

which his claim for relief is based, or (2) after the 180-day time period expired, the 
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United States Supreme Court recognized a new federal or state right that applies 

retroactively to the petitioner and is the basis of his claim for relief. R.C. 

2953.23(A)(1)(a). The petitioner must then show “by clear and convincing evidence 

that, but for constitutional error at trial, no reasonable fact finder would have found 

[him] guilty of the offense of which [he] was convicted.” R.C. 2953.23(A)(1)(b). 

{¶9} 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 second 

or successive petition for postconviction relief. State v. Carter, 2d Dist. No. 03-CA-11, 

2003-Ohio-4838, citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 

(1998). 

{¶10} In this case, Wolff’s petition was unquestionably filed beyond the 180-

day time limit set forth in R.C. 2953.21. The trial transcripts were filed with this court 

on December 13, 2007. Therefore, Wolff’s petition was due by June 10, 2008. Wolff 

did not file the petition until July 21, 2010, well over two years after the statutory 

deadline. 

{¶11} Wolff argues that he qualified for R.C. 2953.23(A)’s exception to 

timeliness because he was unavoidably prevented from discovering the facts upon 

which his claim for relief is based. In particular, he alleged that he did not realize that 

the evidence he was relying on in support of his claims of ineffective assistance of 

trial counsel was considered evidence dehors the record until this court indicated so 

in its decision denying his application to reopen his direct appeal. 

{¶12} The bulk of the relevant exhibits Wolff attached to his petition appear to 

be documents taken from the 493-page CSB case history provided to Wolff’s trial 

counsel in CD-ROM form by the state on December 7, 2006. At the time believing 

the evidence to be pertinent to his direct appeal, Wolff states that he urged his 

appellate counsel to use the evidence to raise ineffective assistance of trial counsel 

claims but that his appellate counsel ignored his requests. 

{¶13} However, when this court issued its decision denying his application to 

reopen his direct appeal based on ineffective assistance of appellate counsel for 
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failure to raise ineffective assistance of trial counsel claims, this court stated: 

Determining whether the outcome of Wolff’s trial was affected by 

counsel’s * * * errors requires an examination of evidence which is 

dehors the record. Because of this, Wolff would still be able to raise 

this claim in a petition for postconviction relief, and would not be barred 

by res judicata. 

State v. Wolff, 7th Dist. No. 07 MA 166, 2009-Ohio-7085, ¶40, citing State v. Smith, 

17 Ohio St.3d 98, 101, fn. 1, 477 N.E.2d 1128 (1985). 

{¶14} Wolff’s argument in this regard raises the question of what evidence is 

considered evidence de hors the record. As Wolff points out in this court’s decision 

denying his application to reopen his appeal, this court apparently considered the 

CSB case history to be evidence dehors the record. He claims that when he was 

researching caselaw for his postconviction relief petition in 2008, he understood the 

CSB case history to not constitute evidence de hors the record, citing this court’s 

decision in State v. Hovart, 7th Dist. No. 07 MA 95, 2009-Ohio-7085. In Hovart, the 

petitioner sought to attack the victim’s credibility concerning her recollection of the 

events surrounding the alleged offenses, contending that if they did happen they did 

not happen within the trial court’s jurisdiction. Petitioner supported his postconviction 

relief petition with an investigating police officer’s written statement, the victim’s 

written statement to police, and the police report. From the state’s filing of notices to 

the court of evidence disclosed to petitioner’s trial counsel, it was obvious that those 

particular documents had been provided to his counsel. Noting that the documents 

constituted part of the original record, this court found that they were not material 

properly considered in post-conviction proceedings. Id. at ¶15. This court then 

concluded that the petitioner should have challenged his trial counsel’s effectiveness 

in this regard in his direct appeal and, therefore, was barred from doing so in postconviction proceedings. Id. 

{¶15} In the present case, the state filed a disclosure-of-evidence notice with 
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the trial court on December 7, 2006, indicating that a CSB case history comprising 

493 pages had been provided to Wolff’s counsel in CD-ROM form. In Hovart, 

because the documents were more specifically identified in the state’s disclosure-ofevidence notice, this court was able to determine that the documents petitioner was 

attempting to use in support of his postconviction relief petition and the documents 

provided to his trial counsel were one in the same. Here, however, because the CDROM is not part of the record before this court and the CSB case history comprised a 

voluminous 493 pages (of which Wolff has only selectively provided), it cannot be 

said with assurance that the portions Wolff provided in support of his postconviction 

relief petition were taken from those provided to his trial counsel in discovery. In 

fairness, then, it is reasonable to treat the portions provided by Wolff in support of his 

petition as evidence de hors the record since it is uncertain if they were provided in 

discovery. 

{¶16} Nonetheless, whether or not the evidence Wolff relies on in support of 

his claims of ineffective assistance of trial counsel is evidence dehors the record, 

Wolff was still required to present those claims in a timely manner. “The courts have 

consistently ruled that lack of knowledge or ignorance of the law does not provide 

sufficient cause for untimely filing.” State v. Gaston, 8th Dist. No. 79626, 2007-Ohio155, ¶9. See, also, State v. Styblo, 7th Dist. No. 07 BE 18, 2011-Ohio-2000. “Simply 

being unaware of the law * * * does not equate with being unavoidably prevented 

from discovering the facts upon which the petition is based.” State v. Sturbois, 4th 

Dist. No. 99CA16, 1999 WL 786318, *2, (Sept. 27, 1999). Moreover, facts do not 

equate to legal theories. Id. See also State v. Herring, 7th Dist. No. 06 JE 8, 2007-

Ohio-3174. Here, Wolff is not claiming that there are new facts that he was 

prevented from discovering, but that he was unaware of the legal theory under which 

he could present those facts. All of the facts (i.e., evidence) which he sought to 

introduce in support of his petition were facts known at the time of his trial. Wolff has 

not demonstrated that he was unavoidably prevented from discovering the facts upon 

which his claim for relief was based. Consequently, his petition was untimely and, 
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standing alone, constituted a sufficient basis upon which to be dismissed. 

{¶17} Accordingly, Wolff’s first assignment of error is without merit and is 

overruled. 

{¶18} Wolff’s remaining assignments of error state, respectively: 

The trial court erred when it determined that the appellant did 

nothing but challenge trial counsel’s strategies and tactics that did not 

support vacating the sentence. 

The trial court erred in its conclusion that the appellant’s three (3) 

claims of ineffective assistance of trial counsel failed to raise any issues 

that would necessitate the granting of the petition. 

The appellant was denied a fair trial and due process of law by 

acts of the prosecution in knowingly and unlawfully withholding and 

concealing Exculpatory Evidence. 

{¶19} Because our resolution of Wolff’s first assignment of error was based 

on the trial court’s lack of jurisdiction to entertain the merits of the Wolff’s petition due 

to its untimeliness, that issue is dispositive of this appeal and Wolff’s remaining 

assignments of error are rendered moot. App.R. 12(A)(1)(c). 

{¶20} The judgment of the trial court is hereby affirmed. 

Waite, P.J., concurs. 

DeGenaro, J., concurs.