[Cite as State v. Struckman , 2022

- Ohio

- 2848.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Respondent

- Appellee ,

vs.
BUDDY STRUCKMAN , Petitioner

- Appellant

. :

:

:

:

: APPEAL NO. C

- 210640

TRIAL NO. B

- 1502231

O P I N I O N

.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is : Affirmed Date of Judgment Entry on Appeal: August 17, 2022

Joseph T. Deters , Hamilton County Prosecuting Attorney, and Keith Sauter , Assistant Pr osecuti ng Attor ney, for Plaintiff

- Appel l ee , Buddy Struckman , pro se.OHIO FIRST DISTRICT COURT OF APPEALS

2 M YERS , Presiding Judge

. 

### {¶1} Petitioner

- appellant Buddy Struckman appeals the Hamilton County Common Pleas Court’s judgment d ismissing his petition under R.C. 2953.21 et seq. for relief from his 2018 convictions. We affirm the court ’ s judgment

. 

### {¶2} Struckman was convi cted in 2018 of t wo counts of unlawful possession of a dangerous ordnance, specifically a n automatic firearm and suppresso r. He

un successfully challenged his convictions on direct appeal , State v. Struckman , 1 st Dist. Hamilton N o. C

- 180287, 2020

- Ohio0

- 1232, appeal not accepted , 159 Ohio St.3d 1446, 2020

- Ohio

- 3712, 149 N.E.3d 523 , and in a postconv i ction motion filed in 2020. See State v. Struckman , 1 st D ist. Hamilton No. C

- 2 0 0069, 2021

- Ohi o - 1043, appeal not accepted , 165 Ohio St.3d 1456, 2021

- Ohio

- 4033, 176 N.E

. 3d 759. 

### {¶3} I n t his 202 1 postconviction petition, Struckman s eeks relief from his
convictions , arguing that the state had ei ther suppressed exculpatory evidence and/or
kn owingly misrepr e sented facts to the jury , and thus, violat ed his right to a f air trial. Specifically, Struckman contend s that the contraband discovered during the search of the home located at 622 Maple Street led to a complaint against him in municipal c ourt for posses s ion of marijuana and drug paraphernalia and to a felony indictment for two counts of unlawful possession of a danger ou s ordnance in the common pleas court.
A lthough Struckman knew he had been acquitted of the drug cha rges following a bench tri al , he main t ains that he just recently discovered the reason for his a cquitta l, which was th e municipal court ’ s finding that “ other people may have had access to the area where the drugs were found. ” Struckman claims that the state suppressed , at his felony trial , t h e fact that he had been acquitted of pos session of marijuana and the basis for his acquittal as well a police report which documented officers observing other people in and out of 622 Maple Street in August 2016

. 

### {¶4} To support his pe tition , Struckman submi t ted (1) the transcri pt from Struckman ’ s trial in municipal court; (2) the mail log from the Ohio Depart ment ofOHIO FIRST DISTRICT COURT OF APPEALS

3 Corrections indi c ating that Struckman had received the transcript in Ap ril 2021; (3) the affidavit supporting the municipal compl aint for posses s ion of drugs; (4) an excerpt from the transcript of the f elony trial where Struckman had questioned a police officer about others seen near 622 M aple Street and about the c reation of an August 2016 incident report; and (5) the August 2016 i ncident report , completed by a city of Lockland police officer , detailing Struckman ’ s complaint that so meone had broken into the house at 622 Maple Street and the officer ’ s observation of several males in and out of the house around that time. 

### {¶5} In his app eal from the di s missal of his pe tition, Struckman ad vances three assignments of error that can be reasonably re ad together to argue that the common pleas court erred by d ismissing his petition whe n he had demonstrated that he was unavoidably prevented from discovering th e evidence on which he now relies to support his claims and where that e vid ence demonstrate s substantive grounds for relief. We disagree. No Jurisdiction to Entertain the Petition 

### {¶6} Struckman ’s 2021 po stconviction petition was his second and was filed

w ell a fter the time prescribed by R.C. 2953.21(A)(2) had expired

. Howeve r, a common pleas court may entertain a late or successive postconviction petition if the petition satisfies the jurisdictional requirements of R.C. 2953.23. The petitioner must show eith e r th at he was unavoidably prevented from discovering the facts upon which his claim depends, or that his claim is predicated upon a new , retrospectively applicable federal or state right recognized by the United States Supreme Court since t he time for
fil i ng h is claim had expired. R.C. 2953.23(A)(1) (a)

. And he must show “by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] was convi cted.” R.C.
29 5 3.23 (A)(1) (b)

.OHIO FIRST DISTRICT COURT OF APPEALS

4 

### {¶7} R.C. 2953.23 did not confer upon the common pleas court jurisdiction
to entertain Struckman ’ s late and successive postconviction claims

. Struckman has not claimed that his postconviction claims are based upon a new and retro spectively appl i cable right recognized by the United States Supreme Court. And Struckman has not demonstrated that he was unavoidably prevented from discovering the evidence upon whi ch he now relies. In fact , the evidence he attaches to his petition to s upport h is post c onviction clai ms was available to him prior to or at his felony trial. With respect to the trans c ript of the bench trial in municipal court and the affidavit underlying the complaint, both were available to Struckman, even if he did not g ather the infor m ation p rior to trial. And, he was present at all stages of the municipal court trial, having access t o both th e court ’ s oral statements and its journal entries as well as the transcript

. With respect to t he excerpt from the transcript of the fe lony tr ia l , this demonstrates that the August 2016 incident report was not suppressed but that Struckman had learned of it at trial and had the opportunity to access it at t hat time. Additionally, S truckman did not demonstrate that the state had sup pr essed the fac t that h e had been acquitted of the drug change s filed in municipal court whe r e th e municipal court judgment entry, showing a finding of not guilty of possession of
mari juana and drug paraphernalia , was submitted as an exhibit at Struckman ’ s f elony

tr ial. 

### {¶8} A

ll the evidence which Struckman subm i ts in support of his postconvict ion claims was either known or made known to him at the time of his trial, and thus, he cannot not show that the evidence was either suppressed or that he was unavoidably pr evented from d iscovering the evidence upon which he now relies.

ConclusionOHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶9} Because St ruckman failed to satisfy R.C. 2 953.21 ’ s time r equ irements and R.C. 2953.23 ’ s jurisdictional requ irements, the common pleas court properly dismissed his postconvictio n pe tition. We , therefore, overrule the assi gnments of error and affirm the judgment of t he common pleas court. Judgment affirmed

. W INKLER and B OCK , J J. , concur.

Please n ote: The court has r ecorded its own entry on the date of the release of this opin ion

.