[Cite as State v. Pianowski , 2013-Ohio-2764.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee

v. TED A. PIANOWSKI
Defendant-Appellant
Appellate Case No. 25369 Trial Court Case No. 2005-CR-236 (Criminal Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of June, 2013.

. . . . . . . . . . . MATHIAS H. HECK, JR., by JOSEPH R. HABBYSHAW, Atty. Reg. No. 0089530, Assistant Prosecuting Attorney, Montgomery County Prosecu tor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee TED A. PIANOWSKI, Inmate No. 495-739, Ohio St ate Penitentiary, 878 Co itsville-Hubbard Road, Youngstown, Ohio 44505 Defendant-Appellant- pro se

. . . . . . . . . . . . . 2

 WELBAUM, J. {¶ 1} Defendant-Appellant, Ted A. Pianowski, appeals from the trial court’s decision dismissing his petition for post-c onviction relief. Pianowski’s petition requested relief based on a claim of ineffective assistance of counsel because his counsel faile d to file a notice of appeal. The trial court determined that Pianwoski failed to present substantive grounds for relief because he did not establish how he wa s prejudiced. Pianowski argues that prejudice is presumed in cases where counsel fails to file a notice of app eal, and the trial court e rred in dismissing his petition. {¶ 2} We conclude that the trial court did not err in dismissing Pianowski’s petition for post-conviction relief. The pe tition was untimely, and therefor e outside the trial court’s jurisdiction. Furthermore, the petition failed to establish substa ntive grounds for relief based on ineffective assistance of counsel. Pianwoski fa iled to demonstrate how he was prejudiced as a result of his counsel failing to file a notice of appeal, and prejudice is not presumed under the facts of this case. Accordingly, the decision of the trial court will be affirmed.

I. Facts and Course of Proceedings {¶ 3} On February 8, 2005, Ted A. Pianowski wa s indicted by the Montgomery County Grand Jury for one count of Aggravated Robbe ry and one count of Having Weapons While Under Disability. The count for Aggravated Robbery included a fir earm specification and a repeat violent offende r specification (RVO). {¶ 4} On April 8, 2005, Pianowski was convicted on all counts after a jury trial. Pianowski was sentenced to a pr ison term of ten years for aggravated robbery, five years for 3

 having weapons while under disab ility, three years for the firearm specification, and five years for the RVO specification. Th e sentence was ordered to run consecu tively for a total of 23 years. Pianowski appealed from his sentence in May 2005. {¶ 5} On appeal, Pianowski’s c onvictions were affirmed, but his sentence was declared to be void, and was vacated because of the uncons titutionality of the RVO statute, former R.C. 2929.14(D)(2), under State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. See State v. Pianowski , 2d Dist. Montgomery No. 21069, 2006-Ohio -3372. As a result, Pianowski’s case was remanded to the trial court for resentencing. {¶ 6} On July 14, 2006, the trial court resenten ced Pianowski to a prison term of 18 years, after removing the five -year sentence for the RVO specification. At the resentencing hearing, Pianowski asked if his tr ial counsel could file a notice of appeal of the sentence imposed on remand. Transcript p. 6, ln. 21-25. His trial counsel responded, “Sure.” Id . at p. 7, ln. 2. {¶ 7} Approximately one year later, on July 10, 2007, Pianowski filed a motion for leave to file a delayed appeal from the se ntence imposed on remand. On August 21, 2007, we overruled the motion and dismissed the appeal. {¶ 8} On February 3, 2012, Pianowski filed a petition for post-convi ction relief with the trial court, alleging that hi s counsel was ineffective for havi ng failed to file an appeal. Pianowski attached the relevant portion of the resentencing h earing transcript and his own affidavit to the petition. {¶ 9} In the affidavit, Pianow ski alleges that his trial counsel never contacted him about an appeal. As a result, Pianowski claims that on January 5, 2007, he sent a letter to the Montgomery County Clerk of Court asking for hi s appellate counsel’s c ontact information, but 4

 received no response. He also claimed that on May 7, 2007, he sent a sec ond letter to the clerk’s office asking for the contact in formation of the court stenog rapher who had transcribed the resentencing hearing. Pianowski wanted to c ontact the stenographer so that he could obtain a copy of the resentencing hearing transcript to attach to his petition for post-conviction relief. Pianowski alleges that the cler k’s office never responded to the second letter, and that between September 2007 and July 2011, he sent thirteen additional letters to the clerk’s office asking for the same information. Pianowski alleges that he never received a response. Pianowski attached each letter he allegedly sent to the clerk’s office to his petition for post-convi ction relief. Eight of the attached letters are original copies. {¶ 10} Pianowski’s affidavit also alleges that in October 2011, Pianowski requested his sister to assist him in locating the court stenographer. His sister allegedly located the stenographer, and Pianowski claims that he receive d a copy of the resentencing hearing transcript in November of 2011. Pianowski claims that he could not file his petition for post-conviction relief until February 3, 2012, because he had difficu lty getting his affidavit notarized while in prison. {¶ 11} On August 14, 2012, the trial court dismissed Pianowski’s petition for post-conviction relief. The tria l court did not analyze the timelin ess of the petition, but instead found that Pianowski had failed to establish substantive grounds for relief as required by R.C. 2953.21(C). Specifically, the trial court found that Pianowski faile d to establish how he had been prejudiced. Pianowski then appealed the trial court’s decision dismissing his petition for post-conviction relief. 5

 II. Did the Trial Court Err in Dismissing the Appellant’s Petition for Post-Conviction Relief? {¶ 12} Pianowski’s sole assignme nt of error states that: The Trial Court Abused its Discre tion, and Violated Appellant’s Due Process Rights to a Fair and Impartial Tri bunal Under the Fourteenth Amendment to the U.S. Constitution and Article I, Section 16, of the Ohio Constitution, When it Unreasonably, Arbitrarily, and Unc onscionably Denied and Dismissed His Post-Conviction Petition. {¶ 13} Under this assignment of error, Pianowski claims that the trial court erred when it found that he failed to establish prejudice in support of his ineffectiv e assistance of counsel claim. Pianowski argues that prejudice is presum ed in cases where counsel fails to file a notice of appeal. Accordingly, Pianowski argues th at he had substantive grounds for post-conviction relief. {¶ 14} We review the trial c ourt’s denial of a petition fo r post-conviction relief under an abuse of discretion standard. State v. Bates, 2d Dist. Clark No. 2009 CA 106, 2010-Ohio-3440, ¶14, citing State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 52. The trial court’s decision must be “unreasonable, arbitr ary or unconscionable ” to be considered an abuse of discretion . AAAA Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157,161, 553 N.E.2d 597 (1990). {¶ 15} We will first address whet her Pianowski’s petition for post-conviction relief was timely, and then address whether the trial court abused its discretion in dismissing Pianowski’s petition for lack of substantive grounds. 6



A. Timeliness of Appellant’s Petition for Post-Conviction Relief {¶ 16} R.C. 2953.21 and 2953.23 govern petitions fo r post-conviction relief. Section (A)(2) of R.C. 2953.21 sets forth a 180-day time limitation for filing petitions. The statute specifically states that: Except as otherwise provided in s ection 2953.23 of the Revised Code, a petition under division (A)(1) of this sec tion shall be filed no later than one hundred eighty days after the date on which th e trial transcript is filed in the court of appeals in the direct appeal of the j udgment of conviction or adjudication * * *. If no appeal is taken, except as ot herwise provided in section 2953.23 of the Revised Code, the petition sh all be filed no later than one hundred eighty days after the expiration of the time for filing the appeal. R.C. 2953.21(A)(2). {¶ 17} As we discussed in State v. Wells , 2d Dist. Champaign No. 2010 CA 5, 2010-Ohio-3238: The trial court lacks jurisdiction to consider an untimely petition for post-conviction relief, unless the untimeliness is excused under R.C. 2953.23(A)(1)(a). State v. West , Clark App. No. 08 CA 102, 2009-Ohio-7057, ¶ 7. Pursuant to R.C. 2953.23(A)(1)(a), a defe ndant may file an untimely petition for post-conviction relief (1) if he was unavoidably preven ted from discovering the facts upon which he relies to present his cla im, or (2) if the United States Supreme Court recognizes a new right that app lies retroactively to his situation. Id . “The phrase ‘unavoidably prevented’ means th at a defendant was unaware of those 7

 facts and was unable to learn of them through reasonable diligence.” State v. McDonald , Erie App. No. E-04-009, 2005-Ohio -798, ¶ 19. If one of these conditions is met, the petitioner must th en also show by clear and convincing evidence that, if not for the constitutional error from which he suffered, no reasonable factfinder would have f ound him guilty. R.C. 2953.23(A)(1)(b). Wells at ¶ 10. {¶ 18} In this case, Pianowski filed his petiti on for post-conviction relief on February 3, 2012, approximately five years af ter the 180-day deadline set fort h in 2953.21(A)(2). Pianowski concedes that his petition is well outside th e time limit. Defendant’s Post-Conviction Petition (Feb. 3, 2012), Docket #3, p. 5. However, Pianowsk i argues that he wa s permitted to file a petition out of time under R.C. 2953.23(A)(1), b ecause he was unavoidably prevented from obtaining a transcript of the resent encing hearing, which he needed in order to file his petition for post-conviction relief. {¶ 19} In State v. Martin , 2d Dist. Montgomery No. 20024, 2004-Ohio-73, we held that a defendant was unavoidably prev ented from timely filing a petiti on for post-conviction relief within the meaning of R.C. 2953.23(A)(1)(a) based on the fact that the defendant was unable to timely obtain affidavits from alibi witnesses which were necessary to attach to the defendant’s petition. Id . at ¶ 15-16. The defendant lost contact w ith the alibi witnesse s while incarcerated, and was unavoidably prevented from timely filing because “he could not have obtained the affidavits from the alib i witnesses sooner.” Id . at ¶ 16. {¶ 20} Unlike the defendant in Martin , Pianowski could have obt ained the resentencing hearing transcript sooner than what he did, as he did not use reasonable diligence when 8

 attempting to obtain it. Pianowsk i claims that it took him four years to obtain a copy of the transcript because he did not know the name of the court stenographe r who transcribed the resentencing hearing. In an attempt to obtai n the court stenographer’s information, Pianowski allegedly wrote fourteen letters to the clerk’s office. Pianowski allegedly sent the same letter to the clerk’s office over and over again to the same address, requesting the same information for four years despite never receiving a response. Pianowski did not request outside assistance from another person until October 2011, when he asked his sister to locat e the stenographer four years after the resentencing hearing. Pianowski received the transcript a month later in November 2011. The record does not indicate any reason wh y Pianowski could not have obtained outside assistance any earlier than October 2011. Accordin gly Pianowski’s attempts at obtaining the transcript were not reasonably diligent. Additionally, a majority of the letters he allegedly sent are not credible, as eight of the letters attached with Pianowski’s affidavit are original copies. {¶ 21} Pianowski also failed to use reasonable diligence when it came to following-up with appellate counsel regard ing his notice of appeal. Pi anowski waited until January 5, 2007, six months after his resentencing hearing, before attempting to contact appellate counsel about his appeal. The alleged delay in discovering the fact that a noti ce of appeal had not been filed was due to Pianowski’s own inac tion. Furthermore, Pianowski s hould have realized an appeal was not filed prior to the 180-day deadline for pos t-conviction relief since he received no filings or correspondences regarding an appeal. {¶ 22} Because Pianowski failed to use reas onable diligence, he was not unavoidably prevented from timely filing his petition for post-c onviction relief, and hi s untimely petition is not excused under R.C. 2953.23(A)(1)(a). Since Pi anowski failed to show he was unavoidably 9

 prevented from timely filing, we need not cons ider the second factor set forth in R.C. 2953.23(A)(1)(b). The trial court therefore lacked jurisdiction to consid er Pianowski’s petition, and should have dismissed it based on its untimeliness.

B. Substantive Grounds for Post-Conviction Relief {¶ 23} Even if Pianowski’s petition for post- conviction relief were timely, the trial court did not abuse its discretion when it dismissed Pianowski’s petition for lack of substantive grounds for relief based on ineff ective assistance of counsel. {¶ 24} To succeed on a claim of ineffective assistance of counsel, “it must be demonstrated that trial counsel 's conduct fell below an objective standard of reasonableness and that his errors were serious e nough to create a reasonable probability that, but for the errors, the result of the trial woul d have been different.” State v. Mitchell , 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31, citing Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, Pianowski was required to “show that his attorney's performance was deficient, and that the deficient performance prejudiced him.” State v. Slaughter , 2d Dist. Montgomery No. 25270, 2013-Ohio-1824, ¶ 18, citing Strickland at 687. {¶ 25} There is no question that the performance of Pianowski’s counsel was deficient, as the failure to file a notice of appeal through inadvertence “clearly falls ‘outside the wide range of professionally competent assistance.’ ” Kitchen v. United States , 227 F.3d 1014,1020 (7th Cir. 2000) , quoting Strickland at 690. “Merely demonstrating deficient performance, however, is not enough to succeed on an ine ffective assistance claim.” Id . Pianowski must also establish that the deficient performance prejudiced him in some way. Slaughter , 2d Dist. Montgomery 10

 No. 25270, 2013-Ohio-1824, at ¶ 18, citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. {¶ 26} Pianowski relies on Ludwig v. United States, 162 F.3d 456 (6th Cir. 1998) for the proposition that “[p]rejudice must be presumed” in cases where c ounsel fails to file a direct appeal after a defendant re quests counsel to do so. Id. at 459. {¶ 27} In Kitchen, 227 F.3d 1014 (7th Cir. 2000), the Seventh Circuit of the United States Court of Appeals review ed the same argument under a s imilar set of circumstances. The defendant in Kitchen was convicted for possession of cocaine and being a felon in possession of a firearm, and was sentenced to 15 years in prison. Id . at 1016. The defendant filed a timely notice of appeal from his convic tion and sentence, and the Sevent h Circuit affirmed the firearm conviction, but found that the evidence was in sufficient to sustain the cocaine charge. Id . at 1016-1017. During the pendency of the appeal, the defendant filed a moti on for new trial on the basis of newly discovered evidence. Id . at 1017. The motion for new trial was denied, and the defendant wanted to appeal the denial, but his counsel inadverten tly failed to file a notice of appeal. Id . The defendant subsequen tly filed a motion for post-c onviction relief on grounds of ineffective assistance of counsel. Id . The district court denied the motion on grounds that the defendant failed to establis h that he had been prejudiced by his counsel’s failure to file a notice of appeal. Id. The Seventh Circuit granted the defendant a certificate of appeallability on this issue. Id. {¶ 28} On appeal, the defendant in Kitchen argued that his case was analogous to Roe v. Flores-Ortega , 528 U.S. 470, 120 S.Ct.1029, 145 L. Ed. 2d 985 (2000), in which the United States Supreme Court held that prejudice is presumed when couns el fails to file a notice of 11

 appeal. Kitchen at 1020-21. The Seventh Ci rcuit ultimately rejected this argument, as it found that Flores-Ortega, and other similar cases that presumed prejudice, were distinguishable. The court in Kitchen stated that: [I]n those cases in which the Supreme Cour t, as well as this and other circuits, have presumed prejudice from the failure to file a notice of appeal, defendants have had no assistance of counsel for any issues. See Flores-Ortega , 120 S.Ct. at 1033; Castellanos , 26 F.3d at 718. See also, e.g., Ludwig v. United States , 162 F.3d 456, 459 (6th Cir.1998); Morales v. United States , 143 F.3d 94, 97 (2d Cir.1998). Cf

. Penson , 488 U.S. at 78-79, 109 S.Ct. 346 (defense counsel withdrew prior to appeal). Therefore, a presumption of prejudice has arisen when the defendant was hampered by “the complete denial of counsel,” Flores-Ortega , 120 S.Ct. at 1038 (emphasis added), meaning that “the defendant never receive[d] the benefit of a lawyer's services in constructing potential appellate arguments,” Castellanos , 26 F.3d at 718 (emphasis added). Wh en “[n]o one has looked at the record with an advocate's eye,” id., po ssible arguments on appeal are not even identified by an attorney, and it would be difficult for a court to evaluate the likelihood of success on appeal when the potential issues on that appeal were never identified. (Citation omitted.) Kitchen, 227 F.3d at 1020-1021 (7th Cir. 2000). {¶ 29} The Seventh Circuit determined that the cases which presumed prejudice, including Ludwig , did not apply to the defendant in Kitchen because the defendant had previously filed a timely notice of appeal from his conviction and sentence, and his counsel argued several 12

 issues before the court on direct appeal. Id. As a result, the court could not “characterize such a situation as one in which [the de fendant] was ‘abandoned’ by his attorney or the denial of counsel on appeal was ‘complete.’ His attorney’s de ficient performance did not ‘deprive * * * [defendant] of the appellate proceeding altogether.’ ” Id . at 1021, quoting Flores-Ortega at 1038. Accordingly, the Seventh Circuit went on to conduct the prejudice analysis set forth in Strickland

. Id . at 1022. {¶ 30} The present case is analogous to Kitchen in that Pianowski previously filed a timely notice of appeal of his sentence. His attorney also argued the first appeal, which successfully reduced Pianowski’s sent ence. Like the defendant in Kitchen , Pianowski was not deprived of the appellate proceeding altogether. Therefore, the trial court correctly determined that the prejudice prong of the Strickland test should not be presumed in this case. As a result, Pianowski had the burden to esta blish that he was prejudiced. State v. Walz , 2d Dist. Montgomery No. 23783, 2012-Ohio-4627, ¶ 32, citing Strickland at 668. (Other citation omitted.) {¶ 31} Pianowski did not state how he was prejudi ced by his counsel’s failure to file a notice of appeal. He merely argued that pr ejudice was presumed. Because prejudice is not presumed, and because Pianowski failed to state how he was pr ejudiced, he cannot satisfy the second prong of the Strickland test. As a result, his ineffectiv e assistance of counsel claim fails, leaving no substantive grounds for post-conviction relie f. Therefore, the trial court did not abuse its discretion when it dismi ssed Pianowski’s petition for l ack of substantive grounds. {¶ 32} Pianowski’s sole assignme nt of error is overruled. 13

 III. Conclusion {¶ 33} Having overruled Ted A. Pi anowski’s sole assignment of error, we affirm the trial court’s decision dismissing hi s petition for post-c onviction relief.

. . . . . . . . . . . . .

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to: Mathias H. Heck Joseph R. Habbyshaw Ted A. Pianowski Hon. Michael W. Krumholtz (for Judge Price-Testerman)