[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. 22CA 9

v . : NATHAN MCDANIEL, : DECISION AND JUDGMENT ENTRY Defendant

- Appellant. :

_________________________________________________________________ APPEARANCES: Christopher Bazeley, Cincinnati, Ohio, for appellant 1
. 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 relie f fil ed 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.MEIGS, 22CA9 2

SECO ND 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 cou rt re ve rsed 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 attor ney f or 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 Fe br uary 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 post

trial Motions in this case. The most recent M otion w as a Petition to Vacate or Set Aside Judgment and to AppointMEIGS, 22CA9 3

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 h as 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 p ro 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. 2 953.2 1. ” 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 Attor ne y’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 Defen da nt. Therefore, all Motions are hereby DENIED.
This appeal followed. 2

2 After filing his September 1, 2022 notice of appeal, appe ll ant f iled a pro se “Motion to Amend and or Include to Post

Conviction Petition.” On October 26, 2022, the trial court denied all pending postconviction motions, including the September 1, 2022MEIGS, 22CA9 4

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 conduc ting 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 “a bu se 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

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

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

3 Ap pelle e, 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. Alth ou gh Mc Dougald 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

- Ohio

50 80 , use d 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. 20CA 72 2, 20 21

- 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.MEIGS, 22CA9 5

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 postconvic tion

re lief. 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 proce ed ing 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

- Ohio

2720, ¶ 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 petiti oner 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 ca nnot be addressed on direct appeal because the evidence supporting theMEIGS, 22CA9 6

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. ” St at e 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 th e cou rt 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 considerati on of a ppellant’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

- Ohi o - 275 6, ¶ 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 tria l cou rt did not address timeliness, we believe appellant’s motion is untimely. Moreover, when a defendant files an untimely petition or a successiveMEIGS, 22CA9 7

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 retr oacti ve ly 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 fou nd th e 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 e xistence 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 untimel y, seco nd, or successive petition if DNA testing results “establish, by clear and convincing evidence” the petitioner’s “actual innocence.” R.C. 2953.23(A)(2).MEIGS, 22CA9 8

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 inc ludin g 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). St ate 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 with out d ef erence 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 w hich 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
A ugust 2 3, 2022 pro se postconviction relief petition argued that (1) the state presented false evidence and testimony thatMEIGS, 22CA9 9

exaggerated the victim’s injuries, and (2) the trial court lacked subject matter jurisdiction to convict appellant of kidnapping due
to a de fect 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 indi ct ment 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. 2 905.11. 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 prop er la ng uage, 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 s ta te 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 didMEIGS, 22CA9 10

not explain why he did not raise the defect in the indictment in his d irect a ppeal. 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, t rial co unsel 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 meri ts of h is 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 hi s arg um ents. 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 , quo ti ng State v. Burton , 4th Dist. Gallia No. 13CA12, 2014

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2549, ¶ 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 ofMEIGS, 22CA9 11

conv ic tion 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

a t the t rial, 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 app eal. I n 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 rai sed i ss ues 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 ass ignme nt 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 tria l cou rt to makeMEIGS, 22CA9 12

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) a nd is su e 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 f ile 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 dis missi ng 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 i ts “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
soug ht by t he Defendant.” Here, because appellant’s petition isMEIGS, 22CA9 13

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 re mi nded 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. A s 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. T hus, 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 ENTRYMEIGS, 22CA9

14

It is ordered that the judgment be affirmed as modified
. Appe llee 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 jud gm ent i nto 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
F or 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 constitu te s a f inal judgment entry and the time period for further appeal commences from the date of filing with the clerk.