[Cite as State v. Brown, 2012-Ohio-2126.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-11-68 

 v. 

ANTWAYNE D. BROWN, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2004 0459 

Judgment Affirmed 

Date of Decision: May 14, 2012 

 

APPEARANCES: 

Antwayne D. Brown, Appellant 

Jana E. Emerick for Appellee 
Case No. 1-11-68 

-2- 

WILLAMOWSKI, J.

{¶1} Defendant-appellant Antwayne D. Brown (“Brown”) brings this 

appeal from the judgment of the Court of Common Pleas of Allen County denying 

his motion for post-conviction relief. For the reasons set forth below, the 

judgment is affirmed. 

{¶2} On January 11, 2005, a jury convicted Brown of one count of 

aggravated burglary with a firearm specification, one count of aggravated robbery 

with a firearm specification, and felonious assault with a firearm specification. 

The trial court then proceeded to immediately sentence Brown to an aggregate 

prison term of twenty-nine years. The verdicts and sentence were journalized on 

January 14, 2005. A direct appeal was taken and on November 21, 2005, this 

court affirmed Brown’s convictions and sentences. State v. Brown, 3d Dist. No. 1-

05-11, 2005-Ohio-6177. 

{¶3} On October 14, 2011, Brown filed a petition for post-conviction relief. 

The State filed its response on October 17, 2011. On October 26, 2011, the trial 

court dismissed Brown’s petition. Brown appeals from this judgment and raises 

the following assignments of error. 

First Assignment of Error 

The trial court erred when [it] denied [Brown’s] petition for 

post-conviction relief based on being untimely. 
Case No. 1-11-68 

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Second Assignment of Error 

The trial court erred when [it] denied [Brown’s] petition for 

post-conviction relief and abused [its] discretion when doing so 

without a hearing.

{¶4} The first assignment of error alleges that the trial court erred in 

denying Brown’s petition for post-conviction relief. Petitions for post-conviction 

relief are governed by R.C. 2953.21, which states in pertinent part as follows. 

Any person who has been convicted of a criminal offense * * * 

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 petitioner may file a 

supporting affidavit and other documentary evidence in support 

of the claim for relief. 

* * * 

[A] petition under division (A)(1) of this section shall be filed no 

later than one hundred eighty days after the date on which the 

trial transcript is filed in the court of appeals in the direct appeal 

of the judgment of conviction * * *. 

R.C. 2953.21(A)(1-2). A court generally is prohibited from considering a petition 

filed past the statutory deadline. R.C. 2953.23(A). However, an untimely motion 

may be considered if both of the following requirements are met. R.C. 2953.23. 

(a) 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 [R.C. 2953.21(A)(2)] or to 
Case No. 1-11-68 

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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. 

(b) The petitioner shows 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). 

{¶5} In this case, Brown claims that he was prevented from filing a timely 

petition. He alleges that he did not commit the offenses and that he recently came 

into possession of an affidavit from the real offender, one Antwon Dotson 

(“Dotson”). Brown also alleges that the State was aware of Dotson’s confessions 

prior to his trial and did not disclose the existence of Dotson’s statements to 

Brown. However, a review of the record indicates that Brown was aware of 

Dotson at the time of the trial and did not call him to testify at trial. Tr. 352. In 

addition, the attached affidavit from Dotson was dated November 10, 2009.1

 The 

petition was not filed until 2011. Since the record indicates that Brown was aware 

of Dotson’s connection to this case at the time of trial, it is not newly discovered 

evidence. The petition was not filed within the statutory deadline. Thus the trial 

court did not err in dismissing the petition. The first assignment of error is 

overruled. 

 

1

 This court notes that the notary signed the affidavit on November 4, 2009. 
Case No. 1-11-68 

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{¶6} Brown also alleges that the trial court erred by not holding a hearing 

before dismissing the petition. A hearing on a petition for post-conviction relief is 

not necessary unless the trial court finds that the petition sets forth substantive 

grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 282-83 (1999) and R.C. 

2953.21(C). 

{¶7} Here, there is no question that the petition was not timely filed. The 

trial court reviewed the attached affidavits and the records. The trial court then 

determined that the timeliness exceptions set forth in R.C. 2953.23(A) did not 

apply in this case. This court has affirmed this finding above. Thus, since the 

petition was not timely filed and the exceptions did not apply, the trial court had 

no authority to consider the petition, let alone hold a hearing. The trial court did 

not err in dismissing the appeal without a hearing. The second assignment of error 

is overruled. 

{¶8} Having found no error prejudicial to Brown, the judgment of the Court 

of Common Pleas of Allen County is affirmed. 

Judgment Affirmed 

PRESTON and ROGERS, J.J., concur. 

/jlr