[Cite as State v. McDaniel, 2023-Ohio-3051.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

MEIGS COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 22CA9

v. :

NATHAN MCDANIEL, : DECISION AND JUDGMENT ENTRY 

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Christopher Bazeley, Cincinnati, Ohio, for appellant1. 

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio, 

for appellee.

_________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:8-24-23

PER CURIAM.

{¶1} This is an appeal from a Meigs County Common Pleas Court 

judgment that overruled a petition for postconviction relief filed

by Nathan McDaniel, defendant below and appellant herein. 

Appellant assigns two errors for review: 

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

DENIED MCDANIEL’S POST CONVICTION RELIEF 

PETITION WITHOUT A HEARING.”

1 Different counsel represented appellant during the trial

court proceedings.
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SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED WHEN IT DENIED 

MCDANIEL’S PETITION WITHOUT FILING A FINDINGS 

OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY 

R.C. 2953.21(D).”

{¶2} In 2012, a jury found appellant guilty of (1) felonious 

assault, in violation of R.C. 2903.11(A)(2), and (2) kidnapping, in 

violation of R.C. 2905.01(A)(4). The trial court sentenced 

appellant to serve an aggregate 18-year prison sentence and pay 

restitution. Appellant appealed the judgment of conviction and 

sentence and this court reversed the restitution award. State v. 

McDaniel, 4th Dist. Meigs No. 12CA6, 2013-Ohio-4003 at ¶ 23. 

{¶3} On August 26, 2020, appellant filed a motion for 

“dismissal” “due to alleged perjury committed by witnesses, fraud 

committed by the prosecuting attorney for permitting perjury,” and 

the trial court “prejudicially admitted the perjured testimony.” 

The court denied the motion. On September 29, 2020, appellant 

again moved the court to dismiss for the same reasons raised in his 

August 26, 2020 motion. 

{¶4} On February 11, 2021, appellant filed a pro se R.C. 

2953.21 postconviction relief petition. On October 7, 2021, the 

trial court denied the petition: 

The Defendant, Nathan McDaniel, has filed a number of posttrial Motions in this case. The most recent Motion was a 

Petition to Vacate or Set Aside Judgment and to Appoint 
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Counsel.

The court has appointed counsel. The most recently 

appointed attorney * * * has reviewed the record and finds 

that there is no basis for the Defendant’s request. 

Likewise, this Court has reviewed the record and the 

Defendant’s arguments.

The Court finds no basis for the remedies sought by the 

Defendant.

Therefore, the Defendant’s Petition to Vacate or Set Aside 

Judgment is hereby DENIED.

{¶5} On November 1, 2021, appellant filed a pro se “Motion to 

Vacate Void Sentence.” On August 23, 2022, appellant filed another 

pro se “Motion for Leave to File Petition to Vacate or Set Aside 

Judgment of Conviction Pursuant to R.C. 2953.23" and “Motion for 

Post Conviction Relief Pursuant to R.C. 2953.21.” On August 26, 

2022, the trial court again denied appellant’s motions:

On March 17, 2021, the Court appointed * * * to review the 

Defendant’s Post Conviction requests. Defense counsel 

found no basis for Post-Conviction Relief. Since the 

Defense Attorney’s notice of withdraw, the Defendant and 

his family have continued to file Motions, letters and 

emails.

The Court has reviewed all documents filed by the Defendant 

in the above-mentioned case and finds that no basis for 

the remedies sought by the Defendant. Therefore, all 

Motions are hereby DENIED.

This appeal followed.2

2 After filing his September 1, 2022 notice of appeal, 

appellant filed a pro se “Motion to Amend and or Include to PostConviction Petition.” On October 26, 2022, the trial court denied 

all pending postconviction motions, including the September 1, 2022 
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I

{¶6} In his first assignment of error, appellant asserts that 

the trial court abused its discretion when it denied his August 23, 

2022 postconviction relief petition without conducting a hearing. 

{¶7} Appellant contends that a decision to deny a 

postconviction petition without a hearing should be reviewed under 

the abuse of discretion standard, citing State v. Taylor, 10th 

Dist. Franklin No. 14AP-166, 2014-Ohio-3574, ¶ 6.3 In general, an 

“abuse of discretion” implies that a court’s attitude is 

unreasonable, arbitrary, or unconscionable. Jayjohn, id.; State v. 

Herring, 94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. 

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). In reviewing for 

an abuse of discretion, an appellate court must not substitute its 

motion. These motions are not the subject of this appeal.

3Appellee, however, argues that appellate courts should use a 

de novo standard of review, citing State v. McDougald, 4th Dist. 

Scioto No. 09CA3278, 2009-Ohio-4417 (McDougald I), and State v. 

Collins, 4th Dist. Athens No. 06CA40, 2007-Ohio-3558 at ¶ 7. 

Although McDougald I used a de novo standard of review, McDougald I 

also acknowledged In re B.C.S., 4th Dist. Washington No. 07CA60, 

2008-Ohio-5771, which adopted a “mixed” standard of review. 

Further, McDougald II, 4th Dist. Scioto No. 16CA3736, 2016-Ohio5080, used the abuse of discretion standard. In more recent cases, 

this court continues to use the abuse of discretion standard of 

review. See State v. Carver, 2022-Ohio-2653, 194 N.E.3d 393 (4th 

Dist.), ¶ 11-12, State v. Jayjohn, 4th Dist. Vinton No. 20CA722, 

2021-Ohio-2286, ¶ 9, State v. Osborn, 4th Dist. Adams No. 18CA1064, 

2018-Ohio-3866, ¶ 9; see also State v. Gondor, 112 Ohio St.3d 377, 

2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.
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judgment for the trial court’s judgment. State ex rel. Duncan v. 

Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d 1254 

(1995). 

{¶8} R.C. 2953.21 governs a petition for postconviction 

relief. Any person convicted of a criminal offense who claims a 

denial or infringement of rights to such a degree as to render a 

judgment void or voidable may file a petition for postconviction 

relief. R.C. 2953.21(A)(1)(a)(I). “[A] postconviction proceeding 

is not an appeal of a criminal conviction but rather, is a 

collateral, civil attack on a criminal judgment.” State v. Broom, 

146 Ohio St.3d 60, 2016-Ohio-1028, 51 N.E.3d 620, ¶ 28, citing 

State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994);

accord State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio2720, ¶ 11, State v. Brown, 4th Dist. Scioto No. 20CA3917, 2022-

Ohio-519, ¶ 6. 

{¶9} Postconviction relief is not a constitutional right; 

instead, it is a narrow remedy that gives the petitioner no more 

rights than those granted by statute. State v. Smith, 4th Dist. 

Highland No. 19CA16, 2020-Ohio-116; Carver, supra, 2022-Ohio-2653, 

194 N.E.3d 393, ¶ 11; Brown, supra, at ¶ 7. Postconviction relief 

is a means to resolve constitutional claims that cannot be 

addressed on direct appeal because the evidence supporting the 
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claims is not contained in the record. Carver at ¶ 11. This means 

that “any right to postconviction relief must arise from the 

statutory scheme enacted by the General Assembly.” State v. 

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 

35. 

{¶10} R.C. 2953.21(A)(2) provides that a petitioner must file a 

postconviction relief petition no later than 365 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. In the 

case sub judice, it appears that appellant filed his petition nine 

years after the filing of the transcript in his direct appeal. 

Thus, the lapse of time should bar consideration of appellant’s 

latest postconviction relief petition. See State v. Rinehart, 4th 

Dist. Ross No. 17CA3606, 2018-Ohio-1261, ¶ 13 (petition filed 10 

years after expiration of 365-day period untimely); State v. Heid, 

4th Dist. Scioto No. 15CA3710, 2016-Ohio-2756, ¶ 1 (petition filed 

seven years after expiration of time for filing an appeal 

untimely); State v. Mitchell, 2021-Ohio-4386, 181 N.E.3d 550, ¶ 20 

(4th Dist.) (petition filed four years after expiration of 365-day 

period untimely). Although the trial court did not address 

timeliness, we believe appellant’s motion is untimely. Moreover, 

when a defendant files an untimely petition or a successive 
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petition R.C. 2953.23(A) prevents trial courts from considering the 

petition unless both of the following apply: (1) petitioner shows 

he or she “was unavoidably prevented from discovery of the facts 

upon which the petitioner must rely to present the claim for 

relief,” or “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;” and (2) “[t]he petitioner shows by clear and 

convincing evidence that, but for constitutional error at trial, no 

reasonable factfinder would have found the petitioner guilty.” 

R.C. 2953.23(A)(1)(a) and (b).4

{¶11} “A defendant is ‘unavoidably prevented’ from the 

discovery of facts if he had no knowledge of the existence of those 

facts and could not have, in the exercise of reasonable diligence, 

learned of their existence within the time specified for filing his 

petition for postconviction relief.” State v. Cunningham, 65 

N.E.3d 307, 2016-Ohio-3106, ¶ 19 (3d Dist.), citing State v. 

Holnapy, 11th Dist. Lake No. 2013-L-002, 2013-Ohio-4307, ¶ 32, and 

State v. Ruark, 10th Dist. Franklin No. 15AP-142, 2015-Ohio-3206, ¶ 

4 Another exception, inapplicable here, allows a court to 

entertain an untimely, second, or successive petition if DNA 

testing results “establish, by clear and convincing evidence” the 

petitioner’s “actual innocence.” R.C. 2953.23(A)(2). 
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11; see also Brown, 4th Dist. Scioto No. 20CA3917, 2022-Ohio-519, 

at ¶ 9. Moreover, “[t]he ‘facts’ contemplated by this provision 

are the historical facts of the case, which occurred up to and 

including the time of conviction.” State v. Williamitis, 2d Dist. 

Montgomery No. 21321, 2006-Ohio-2904, at ¶ 18. 

{¶12} A trial court lacks jurisdiction to consider an untimely 

or a successive petition if the petitioner fails to satisfy R.C. 

2953.23(A)(1)(a) and (b). State v. Parker, 157 Ohio St.3d 460, 

2019-Ohio-3848, 137 N.E.3d 1151, ¶ 19. Furthermore, whether a 

court possesses jurisdiction to entertain an untimely or a 

successive petition is a question of law that appellate courts 

review independently and without deference to the trial court. 

Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at 

¶ 24; Brown at ¶ 10. 

{¶13} In the case sub judice, it does not appear that appellant 

demonstrated he has been unavoidably prevented from the discovery 

of facts upon which he relied to present the claim, or that, after 

the time period in R.C. 2953.21(A)(2) expired, the United States 

Supreme Court recognized a new federal or state right that applies 

retroactively to people in petitioner’s situation. Appellant’s 

August 23, 2022 pro se postconviction relief petition argued that 

(1) the state presented false evidence and testimony that 
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exaggerated the victim’s injuries, and (2) the trial court lacked 

subject matter jurisdiction to convict appellant of kidnapping due 

to a defect in the indictment. 

{¶14} Appellant contends that the indictment is invalid because 

it listed the statute for kidnapping as R.C. 2911.21, rather than 

R.C. 2905.11. Although appellant states that appellee filed a 

motion on March 19, 2012 to amend the indictment to change the 

statutory citation, the record does not contain an entry that 

disposed of the motion. Further, appellant points out that the 

judgment entry that memorialized the jury’s finding of guilt 

incorrectly cites R.C. 2911.12, rather than R.C. 2905.11. 

Appellant therefore contends that he has raised a substantive 

ground for relief that warrants a hearing. 

{¶15} We recognize that the state’s motion to amend asked the 

court to amend count two, “correctly titled Kidnapping and contains 

the proper language, incorrectly lists the Ohio Revised Code 

Section as 2911.21(A)(1) and should be amended to Ohio Revised Code 

Section 2905.01(A)(1).” The trial court’s March 27, 2012 summary 

of trial proceedings notes that, on the first day of the jury 

trial, the state made a motion at 10:07:08 A.M., “to amend 

indictment count two” and reflects at 10:08:10 A.M., “so amended.” 

While no corresponding entry appears in the record, appellant did 
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not explain why he did not raise the defect in the indictment in 

his direct appeal. Moreover, appellant did not explain how this 

scriveners error prejudiced him. Furthermore, the only “new” 

evidence appellant cites in his postconviction relief petition 

consists of allegations that concern phone records that, he 

concedes, trial counsel possessed before trial. Appellant does not 

explain how he or counsel could not have obtained this evidence at 

the time he filed his direct appeal. Consequently, appellant did 

not establish that the trial court could properly address the 

merits of his untimely and successive postconviction relief 

petition. 

{¶16} Moreover, even if it could be argued that appellant’s 

postconviction petition is timely or is not successive, we also 

believe that the doctrine of res judicata barred consideration of 

his arguments. Res judicata bars appellant from raising claims 

that he could have raised in his direct appeal. “‘[R]es judicata 

applies to proceedings involving postconviction relief.’” State v. 

Shaffer, 4th Dist. Lawrence No. 14CA15, 2014-Ohio-4976, ¶ 16, 

quoting State v. Burton, 4th Dist. Gallia No. 13CA12, 2014-Ohio2549, ¶ 17, citing State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 

N.E.2d 233 (1996); Mitchell, 2021-Ohio-4386, 181 N.E.3d 550, at ¶ 

28. Under the doctrine of res judicata, “a final judgment of
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conviction bars a convicted defendant who was represented by 

counsel from raising and litigating in any proceeding except an 

appeal from that judgment, any defense or claimed lack of due 

process that was raised or could have been raised by the defendant 

at the trial, which resulted in that judgment of conviction, or on 

an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, 

226 N.E.2d 104 (1967), paragraph nine of the syllabus; see also 

Mitchell, id. As noted above, appellant filed a direct appeal. In 

that appeal, this court affirmed, in part, and reversed, in part, 

and remanded the case for further proceedings related to the 

restitution order. See McDaniel, 4th Dist. Meigs No. 12CA6, 2013-

Ohio-4003. On direct appeal, appellant could have raised issues 

concerning the clerical error, the victim’s injuries and the phone 

records. 

{¶17} Therefore, we believe that res judicata bars appellant 

from raising these issues in his postconviction relief petition. 

Accordingly, we overrule appellant’s first assignment of error.

II

{¶18} In his second assignment of error, appellant asserts that 

the trial court erred when it denied McDaniel’s petition without 

filing findings of fact and conclusions of law. Appellant contends 

that because R.C. 2953.21(D) requires a trial court to make 
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findings of fact and conclusions of law if it denies a 

postconviction relief petition, and because the court did not 

consider the petition’s timeliness but instead considered the 

petition on its merits, it must comply with R.C. 2953.21(D) and 

issue findings of fact and conclusion of law. 

{¶19} In McDougald, supra, 4th Dist. Scioto No. 09CA3278, 2009-

Ohio-4417, this court wrote “[g]enerally, when a trial court denies 

a motion for post-conviction relief without conducting an 

evidentiary hearing, it must file findings of fact and conclusions 

of law. Failure to do so results in the lack of a final appealable 

order. Here, the court’s judgment does not satisfy that 

requirement. However, findings of fact and conclusions of law are 

unnecessary when dismissing untimely or successive petitions. 

State ex rel. Bunting v. Haas, 102 Ohio St.3d 161, 807 N.E.2d 359, 

2004-Ohio-2055, at ¶ 11.” McDougald at fn. 3. McDougald further 

noted that, although we could not decipher the grounds on which the 

trial court based its “overruling” of the petition, because the 

petition was untimely no need existed for findings of fact and 

conclusions of law. Id. 

{¶20} In the case sub judice, the trial court denied 

appellant’s petition and noted that “no basis for the remedies 

sought by the Defendant.” Here, because appellant’s petition is 
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untimely and successive, findings of fact and conclusions of law 

are not required. Furthermore, appellant raises no issues that he 

could not have raised during his direct appeal.

{¶21} Recently, we reminded trial courts that when an appellant 

did not establish that any exception applies, a court cannot 

entertain a second postconviction petition and lacks jurisdiction 

to consider the petition. Brown, 4th Dist. Scioto No. 20CA3917, 

2022-Ohio-519, ¶ 14. As in Brown, in the case at bar the trial 

court “technically erred” by summarily overruling appellant’s 

petition rather than issuing a dismissal for lack of jurisdiction. 

Id., citing State v. McManaway, 4th Dist. Hocking No. 16CA8, 2016-

Ohio-7470, ¶ 16. Thus, under App.R. 12(A)(1)(a), we modify the 

trial court’s judgment to reflect the dismissal of appellant’s 

postconviction petition. Id., see also State v. Daboni, 4th Dist. 

Meigs No. 20CA10, 2021-Ohio-3368, ¶ 22; McManaway, supra, at ¶ 19. 

{¶22} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s second assignment of error and affirm the 

trial court’s judgment as modified. 

JUDGMENT AFFIRMED AS MODIFIED. 

JUDGMENT ENTRY
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It is ordered that the judgment be affirmed as modified. 

Appellee shall recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court 

directing the Meigs County Common Pleas Court to carry this 

judgment into execution.

A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J., Abele, J. & Wilkin, J.: Concur in Judgment & 

Opinion

For the Court

BY:__________________________________ 

 Jason P. Smith, Presiding Judge

BY:__________________________________ 

 Peter B. Abele, Judge

BY:__________________________________ 

 Kristy S. Wilkin, Judge 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 

commences from the date of filing with the clerk.