[Cite as State v. Oglesby, 2018-Ohio-871.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee

v. 

BRYAN OGLESBY 

Defendant-Appellant 

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Appellate Case No. 27626 

Trial Court Case No. 2013-CR-50 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 9th day of March, 2018. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

CHARLES W. SLICER, III, Atty. Reg. No. 0059927, 426 Patterson Road, Dayton, Ohio 

45419 

 Attorney for Defendant-Appellant 

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

 

TUCKER, J. 
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{¶ 1} Defendant-appellant Bryan Oglesby appeals from a decision and entry of the 

Montgomery County Court of Common Pleas denying his petition for post-conviction 

relief. He contends that the trial court abused its discretion in denying the petition. 

{¶ 2} We conclude that the trial court did not abuse its discretion in denying the 

petition as it was untimely and Oglesby failed to present any evidence that he was 

unavoidably prevented from discovering the evidence upon which he relied. 

Accordingly, the judgment of the trial court is affirmed. 

I. Facts and Procedural History 

{¶ 3} In May 2013, Oglesby was indicted, in case number 2013-CR-50, on one 

count of felonious assault (serious physical harm), one count of felonious assault (deadly 

weapon), and one count of having a weapon under a disability. All three counts included 

a firearm specification. He was charged in another indictment, case number 2013-CR1282, with assault upon a corrections officer. 

{¶ 4} During a pretrial hearing, the State offered a negotiated plea whereby the 

State would agree to an aggregate prison term in the range of seven to ten years in 

exchange for a guilty plea on all charges in both indictments. Oglesby rejected the offer 

and made a counter offer with a mandatory minimum sentence of five years. The State 

rejected the counter, but did not withdraw its prior offer. Oglesby subsequently entered 

a guilty plea to all charges and specifications without an agreement as to the sentence. 

{¶ 5} Prior to sentencing, Oglesby filed a motion to withdraw the plea. New 

counsel was appointed to represent Oglesby as it became evident that his original 
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counsel might be required to testify at the motion hearing. A hearing was conducted in 

April 2014 following which the trial court denied the motion. 

{¶ 6} Thereafter, a sentencing hearing was conducted. The trial court sentenced 

Oglesby to an aggregate prison term of 12 years. Oglesby appealed his conviction and 

sentence in both cases. In his appeal, he claimed that his plea had not been made 

voluntarily. This court affirmed the conviction and sentence in an opinion rendered on 

June 26, 2015. See State v. Oglesby, 2d Dist. Montgomery No. 26251, 2015-Ohio-2557, 

appeal not allowed, 144 Ohio St. 3d 1459 (Table), 2015-Ohio-2557, 44 N.E.3d 288. 

{¶ 7} On April 25, 2017, Oglesby filed a document entitled “Motion for Post 

Conviction Relief, Alternatively, A Motion For An Order reopening Defendant’s Motion to 

Withdraw Plea And Other Relief.” Oglesby claimed that his original counsel had told him, 

prior to the plea, that he would receive a five-year sentence. Four affidavits, executed 

by Oglesby, his mother, his aunt and his grandmother, were attached to the motion. All 

four affiants averred that counsel had promised Oglesby that he would receive a five-year 

sentence. The trial court overruled the motion without a hearing by entry filed May 22, 

2017. The trial court found that the petition was untimely and that it was barred by the 

doctrine of res judicata. The trial court also ruled that the motion to reopen his motion to 

withdraw plea was barred by res judicata. 

{¶ 8} Oglesby appeals.1

II. Analysis 

{¶ 9} Oglesby’s sole assignment of error states as follows: 

 

1 Oglesby has filed an appeal only from 2013-CR-50. 
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THE TRIAL COURT COMMITTED ABUSE OF DISCRETION AND/OR 

ERROR WHEN IT DENIED THE MOTION FOR POST CONVICTION 

RELIEF 

{¶ 10} Oglesby contends that the trial court should have granted his motion for 

post-conviction relief. In support, he contends he presented new evidence establishing 

that that trial counsel promised him he would receive a five-year sentence. He further 

claims that he would not have entered a plea of guilty without this promise. 

{¶ 11} A petition for post-conviction relief in Ohio is a statutorily created remedy 

set forth in R.C. 2953.21. R.C. 2953.21(A)(1)(a) provides that “[a]ny person who has 

been convicted of a criminal offense * * * 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 post-conviction 

relief process is a civil collateral attack on a criminal judgment, not an appeal of that 

judgment. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). 

{¶ 12} A petition for post-conviction relief must meet strict timeliness requirements. 

R.C. 2953.21(A)(2), during the relevant time period, required that a post-conviction 

petition be filed “no later than one hundred and eighty days after the date on which the 

trial transcript was filed in the court of appeals in the direct appeal of the judgment of 

conviction or adjudication.” Here, Oglesby filed the transcript for his direct appeal on 

August 20, 2014. Thus, his deadline to file a petition for post-conviction relief expired in 

February 2015. Oglesby’s petition, which was filed on April 25, 2017, is untimely.2

 

2 Effective March 23, 2015, R.C. 2953.21(A)(2) was amended to extend the filing deadline 

to three hundred and sixty-five days after the date the trial transcript was filed in the court 

of appeals. Thus, even if the more generous filing date is utilized, Oglesby’s petition was 
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{¶ 13} A trial court may not entertain an untimely post-conviction relief petition 

unless the petitioner initially demonstrates either (1) the petition was not timely filed 

because he was unavoidably prevented from discovering the facts necessary for the claim 

for relief, or (2) the United States Supreme Court recognized a new federal or state right 

that applies retroactively to persons in the petitioner's situation. R.C. 2953.23(A)(1)(a). 

“The phrase ‘unavoidably prevented’ in R.C. 2953.23(A)(1)(a) means that a defendant 

was unaware of those facts and was unable to learn of them through reasonable 

diligence.” State v. Turner, 10th Dist. Franklin No. 06AP–876, 2007-Ohio-1468, ¶ 11. 

{¶ 14} Because Oglesby’s petition for post-conviction relief is untimely, he must 

establish that he falls within one of the exceptions specified in R.C. 2953.23(A) that would 

permit him a longer time period to file his petition. We note that neither his petition nor 

the four affidavits attached thereto address the issue of timeliness, nor do they raise a 

claim that Oglesby was unavoidably prevented from discovering the facts relevant to the 

petition. Further, his appellate brief fails to address these issues. 

{¶ 15} Although he does not directly address the lack of timeliness, Oglesby claims 

that the information upon which he relies was “not known at the time of the initial hearing 

on the motion to withdraw the plea nor was it argued in the initial motion.” Thus, applying 

a liberal reading of his brief, it appears that he attempts to argue that the time for filing is 

extended because he was unavoidably prevented from discovering that counsel had 

promised him that he would be sentenced to a term of five years 

{¶ 16} We cannot discern from the record any evidence to support a finding of 

unavoidable delay. Oglesby’s contention that he was promised a five-year sentence 

 

not timely filed. 
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relies solely upon information provided by himself, his mother, his aunt and his 

grandmother. All of them aver that on the day of the plea hearing, they observed counsel 

hold up five fingers to signal that Oglesby would get a five-year sentence. They also 

aver that they heard counsel state that Oglesby would receive a five-year sentence. 

None of the relatives aver that they were prevented from providing this information to 

Oglesby. Nor does he aver that he was unable to communicate with his relatives. 

{¶ 17} Even if Oglesby was not aware, or was unable to ascertain, that his relatives 

heard the alleged promise or saw the alleged gesture, his own affidavit indicates that he 

was aware of counsel’s promise prior to the hearing on the motion to withdraw. Yet he 

failed to raise this issue in his motion to withdraw the plea. 

{¶ 18} Further, the fact that Oglesby heard the promise and observed the gesture 

supports the trial court’s finding that the petition is barred by the doctrine of res judicata 

as Oglesby could have raised the issue in his motion to withdraw. 

{¶ 19} “We review trial court decisions on petitions for post-conviction relief under 

an abuse of discretion standard.” (Citations omitted.) State v. Perkins, 2d Dist. 

Montgomery No. 25808, 2014-Ohio-1863, ¶ 27. “The term ‘abuse of discretion’ has been 

defined as a decision that is unreasonable, arbitrary, or unconscionable.” (Citation 

omitted.) State v. Howard, 2d Dist. Montgomery No. 26060, 2014-Ohio-4602, ¶ 8. 

{¶ 20} Based upon this record, we cannot conclude that the trial court abused its 

discretion by denying the petition for post-conviction relief. Accordingly, the judgment of 

the trial court is affirmed. 

III. Conclusion 
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{¶ 21} Oglesby’s sole assignment of error being overruled, the judgment of the trial 

court is affirmed. 

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

WELBAUM, P.J. and DONOVAN, J., concur. 

Copies mailed to: 

Mathias H. Heck, Jr. 

Andrew T. French 

Charles W. Slicer, III 

Hon. Dennis J. Adkins