[Cite as State v. Greathouse, 2011-Ohio-4012.]

 IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 24084 

v. : T.C. NO. 05CR852 

TERRANCE L. GREATHOUSE : (Criminal appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 12th day of August , 2011. 

 . . . . . . . . . . 

TIMOTHY J. COLE, Atty. Reg. No. 0084117, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

Attorney for Plaintiff-Appellee 

TERRANCE L. GREATHOUSE, #516-781, Ross Correctional Institute, P. O. Box 7010, 

Chillicothe, Ohio 45601 

Defendant-Appellant 

 . . . . . . . . . . 

DONOFRIO, J. (by assignment) 

{¶ 1} Defendant-appellant, Terrance Greathouse, appeals from a 

Montgomery County Common Pleas Court judgment denying his petition for 

postconviction relief. 

{¶ 2} This case stems back to appellant’s conviction on charges of 
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kidnapping, rape, two counts of aggravated robbery, intimidation of a crime victim, 

and firearm specifications. Upon his conviction, the trial court sentenced appellant 

to a total of 50 years in prison. Appellant’s case was first before this court in 2007, 

on direct appeal from his conviction and sentence. State v. Greathouse, 

Montgomery App. No. 21536, 2007-Ohio-2136 (Greathouse 1). This court affirmed 

appellant’s convictions but reversed his sentence and remanded the matter for 

resentencing. On remand, the trial court once again imposed a total prison term of 

50 years. 

{¶ 3} While his direct appeal was pending, appellant filed his first 

postconviction petition. In his petition, appellant argued that his sentence was 

unconstitutional and should be reversed. The trial court dismissed appellant’s 

petition. 

{¶ 4} Appellant filed his second postconviction petition in 2008. In this 

petition, appellant argued that R.C. 2953.23 was unconstitutional, that his 

indictment was defective, and that he received ineffective assistance of counsel at 

the trial level. The trial court once again dismissed appellant's petition. This led to 

another appeal. State v. Greathouse, Montgomery App. No. 23259, 

2010-Ohio-1617 (Greathouse 2). This court affirmed the trial court’s dismissal of 

appellant’s petition. 

{¶ 5} Appellant filed his third petition for postconviction relief in February 

2010. Once again, the trial court overruled appellant’s petition. 

{¶ 6} On April 27, 2010, appellant filed his fourth petition for postconviction 

relief, which he termed a Civ.R. 60(B)(5) petition. In this petition, appellant alleged 
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that his trial counsel was ineffective for failing to investigate his competency and 

failing to request a competency hearing, the trial court erred in failing to investigate 

his competency, and the state violated his rights by failing to appoint him counsel. 

{¶ 7} The trial court once again treated appellant’s petition as one for 

postconviction relief. It determined that appellant’s petition was untimely. 

Furthermore, it found that appellant failed to show that he was unavoidably 

prevented from discovery of the facts upon which he relies to present his claims for 

relief. It noted that all of appellant’s allegations related to his competency, which is 

an issue within his personal knowledge. Next, the court found that it lacked 

jurisdiction over the petition because it was appellant’s fourth postconviction petition 

and he failed to demonstrate extraordinary circumstances as required by statute in 

order for a court to consider a second or successive postconviction petition. And 

the court found that appellant’s claims were barred by the doctrine of res judicata 

because competency claims were raised in his direct appeal. Finally, the court 

found that for the above stated reasons, appellant was not entitled to a hearing on 

his petition. Consequently, it overruled and dismissed appellant’s petition. 

{¶ 8} Appellant filed a timely notice of appeal on June 7, 2010. 

{¶ 9} On appeal, this court must affirm a trial court's decision granting or 

denying a postconviction petition absent an abuse of discretion. State v. Gondor, 

112 Ohio St.3d 377, 2006-Ohio-6679, at ¶58. Abuse of discretion connotes more 

than an error of law or judgment; it implies that the court's attitude in unreasonable, 

arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. “[A] 

reviewing court should not overrule the trial court's finding on a petition for 
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postconviction relief that is supported by competent and credible evidence.” Id . 

{¶ 10} The timeliness of appellant’s petition must be addressed. The 

requirement that a petition for postconviction relief be timely filed 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 timely filed, the court is 

not permitted to consider the substantive merits of the petition. State v. Beaver

(1998), 131 Ohio App.3d 458, 461 (the trial court should have summarily dismissed 

appellant's untimely petition without addressing the merits). 

{¶ 11} 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 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). 

{¶ 12} 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, Clark App. 

No. 03-CA-11, 2003-Ohio-4838, citing State v. Beuke (1998), 130 Ohio App.3d 633. 
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{¶ 13} In this case, appellant's petition was unquestionably filed well beyond 

the 180-day time limit set forth in R.C. 2953.21. Furthermore, this was appellant’s 

fourth successive postconviction petition. 

{¶ 14} Appellant failed to meet either of the specifically enumerated 

timeliness exceptions under R.C. 2953.23. He did not allege that after his 180-day 

time period expired, the Supreme Court recognized a new federal or state right that 

applies retroactively to him and is the basis of his claim for relief. And while he 

alleged that he was unavoidably prevented from discovering the facts upon which 

his claim for relief is based, the facts upon which he relied in support were within 

his personal knowledge as they all dealt with his competency. Competency claims 

were also raised in his direct appeal showing prior knowledge and res judicata also 

bars this claim. 

{¶ 15} Therefore, appellant's petition was untimely and the trial court was 

without jurisdiction to entertain it. 

{¶ 16} Appellant raises four assignments of error. They state, respectively: 

{¶ 17} “THE TRIAL COURT ABUSED IT’S [sic.] DISCRETION W[H]EN IT 

DENIED HIS APPEAL PURSUANT TO CRIM.R. 33(3&6).” 

{¶ 18} “TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF 

COUNSEL WHEN HE FAILED TO INVESTIGATE AND INQUIRE INTO THE 

COMPETENCE OF HIS CLIENT IN VIOLATION OF HIS 5TH, 6TH, 8TH, AND 

14TH AMENDMENT TO THE UNITED STATES CONSTITUTION.” 

{¶ 19} “TRIAL COURT ERRED WHEN IT FAILED TO INQUIRE INTO THE 

COMPETENCY OF THE DEFENDANT IN VIOLATION OF HIS 5TH, 6TH, 8TH, 
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AND 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION[,] THE 

OHIO CONSTITUTION[,] AND R.C. 2945.37(B).” 

{¶ 20} “THE DEFENDANT’S RIGHTS WERE VIOLATED WHEN HE WAS 

NOT APPOINTED APPELLATE COUNSEL TO REPRESENT HIM THROUGH ALL 

HIS APPEALS ONCE COUNSEL WAS INFORMED THAT THE DEFENDANT 

WAS MENTALLY INCOMPETENT AND ILLITERATE IN VIOLATION OF THE 6TH, 

8TH, AND 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION.” 

{¶ 21} Because we have already determined that the trial court lacked 

jurisdiction to entertain appellant’s postconviction petition, his assignments of error 

are moot. 

{¶ 22} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

 . . . . . . . . . . 

GRADY, P.J. and HALL, J., concur. 

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of 

the Chief Justice of the Supreme Court of Ohio). 

Copies mailed to: 

Timothy J. Cole 

Terrance L. Greathouse 

Hon. Mary Katherine Huffman