[Cite as State v. Pedraza , 2021-Ohio-2976.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA )

STATE OF OHIO Appellee

v. BENJAMIN PEDRAZA, III Appellant C.A. No. 20CA0067-M

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 18CR0990

DECISION AND JOURNAL ENTRY Dated: August 30, 2021

HENSAL, Presiding Judge. {¶1} Benjamin Pedraza III appeals from the judgment of the Medina Co unty Court of

Common Pleas. This Court affirms.

I. {¶2} This is the second time this case has been before this Court. In State v. Pedraza , 9th Dist. Medina No. 19CA0049- M, 2020-Ohio-2661, Mr. Pedraza ra ised two assignments of error that challenged his senten ce for pandering sexually orien ted material involving a minor. Id. at ¶ 5, 15. He also argued that his trial counsel provided ine ffective assistance. Id. at ¶ 24. This

Court overruled all three assignments of error. Id. at ¶ 14, 23, 29. {¶3} Then, on June 11, 2020, Mr. Pedraza filed a pro se “Motion to D ismiss Conviction and Discharge Purs uant to R.C. 2945.71-73 Speedy Tri al Violation[.]” The trial

court construed his motion as a petition for post-conviction re lief under Revised Code Section2

2953.21, and denied it on the basis of res judicata. It conclu ded that Mr. Pedraza could have raised the speedy-tr ial issue at trial, and then on his first a ppeal to this Court. {¶4} Over four months later, on October 26, 2020, Mr. Pedraza filed a “Motion with Supporting Memorandum to Dismiss I ndictment for Failure of the State to Provide Defendant Incarcerated in Lieu of Bail with Speedy Trial Under Ohio Rev. Code 2945.71 Crim. Rule 48[.]” Mr. Pedraza requested that the trial court dismiss the case aga inst him, and discharge him. The trial court summarily denied his motion without explaining its reasoning. This appeal followed. Mr. Pedraza now raises two assignments of error for this Court’ s review, which we will consider together.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED BY FAILING TO BRING APPELLANT TO TRIAL WITHIN 90 DAYS AS REQUIRED BY O.R.C. 2945.71[](B)(2), DENYING HIM HIS RIGHT TO A SPEEDY TRIAL GUARANTEED TO HIM BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I [] SECTION 10 OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR II THE TRIAL COURT ABUSE[D] IT[S] DISCRETION IN NOT GRANTING THE MOTION TO DISMISS INDICTMENT FILED ON OCTOBER 26, 2020. {¶5} In his assignments of error, Mr. Pedraza argues that the trial court violated his statutory and constitutional right to a speedy trial, and that it erred by denying his postconviction, pro se motion to di smiss the indictment. 1 We disagree.

1 The “Issue Presented for Review” under Mr. Pedraza’s first ass ignment of error states: “Did the Trial Court Err by not adjudicating a motion to discha rge for speedy trial violation without first having a hearing be fore proceeding to trial?” Th e body of his assignment of error, however, does not contain an argum ent regarding the trial court ’s failure to conduct a hearing. We, therefore, will not address that issue. See App.R. 16(A)(7).3

{¶6} Mr. Pedraza’s post-conviction, pr o se motion to dismiss the ind ictment and discharge him based upon an allege d violation of his right to a speedy trial was, in substance, a successive petition for pos t-conviction relief. See State v. Charles , 9th Dist. Lorain No. 20CA011608, 2020-Ohio-5558, ¶ 6 (explai ning how courts can cons true an “irregular motion” as a petition for post-conviction relief). A trial court, however , “may not entertain untimely or successive petitions for post-c onviction relief unless the peti tioner satisfies certain requirements.” State v. Little , 9th Dist. Lorain No. 20CA011662, 2021-Ohio-1446, ¶ 8, citing R.C. 2953.23(A)(1). “First, he must show either that (1) he wa s ‘unavoidably prevented’ from discovering the facts he relies on, or (2) subsequent to the 36 5-day deadline, ‘the United States Supreme Court recognized a new fe deral or state right that appl ies retroactively to persons in [his] situation, and the petition asserts a claim based on that right.’” (Alteration sic.) Id. , quoting R.C. 2953.23(A)(1)(a). “Second, he must show ‘by clear and con vincing evidence that, but for constitutional error at trial, no reasonable factfinder would h ave found the petitioner guilty of the

offense of which he was convicted * * *.’” Id. , quoting R.C. 2953.23(A)(1)(b). A petitioner’s failure to satisfy these requirements “deprives a trial court o f jurisdiction to adjudicate the merits of an untimely or successive postconviction petition.” State v. Apanovitch , 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36. {¶7} Mr. Pedraza made no attempt to s atisfy the requirements of Sect ion 2953.23(A)(1). Consequently, the trial court lacked authority to entertain his successive motion regarding the alleged violation of his right to a speedy trial, and properly denied it. Little at ¶ 9. Mr. Pedraza’s assignments of error are overruled.4

III. {¶8} Mr. Pedraza’s assignments of error are overruled. The judgment of the Medina County Court of Common P leas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Medina, State o f 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 consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t 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 pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

CARR, J. CALLAHAN, J. CONCUR.5

APPEARANCES: BENJAMIN PEDRAZA, III, pro se, Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLU ICCI, Assistant Prosecuting Attorney, for Appellee.