[Cite as State v. Martin , 2022

- Ohio

- 2372.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO , Plaintiff

- Appel l ee ,

vs.
RONALD MARTIN , Defendant

- Appell ant

. :

:

:

:

: APPEAL NO. C

- 210644

TRIAL NO. B

- 1 40 2350

O P I N I O N

.

Criminal Appeal From: Hamilton County Court of Common Pleas Judgment Appealed From Is : Affirmed as Modified Date of Judgment Entry on Appeal: July 8, 2022

Joseph T. Deters , Hamilton County Prosecuting Attorney, and Keith Sauter , Assista nt Prosecuti ng Attorney, for Plaintiff

- Appel l ee , Ronald Martin , pro se.OHIO FIRST DISTRICT COURT OF APPEALS

2 W INKLER , Judge

. 

### {¶1} Petitioner

- appellant Ronald Martin appeals the Hamilton County Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et seq. for postconviction r elief and hi s motion for a new trial. Upon our determination that the trial court had no jurisdiction to entertain the petition or the new

- trial motion, we affirm the judgment as modified to dismiss the petition and the new

- trial motion. 

### {¶2} In 2014, follow ing a bench trial, Martin was convicted of the rape and kidnapping of a child

- victim and sentenced to an aggregate prison term of 40 years to life. We affirmed his convictions and sentence on appeal. State v. Martin , 1 st Dist. Hamilton No. C

- 150054, 2016

- Ohio

- 802. In holding that his conviction for rape was supported with sufficient evidence and not against the weight of the evidence , we held
that “in light of the fact that Martin admitted to the conduct, and his version of events was corroborated by the victim and by the video surveillance evidence, the trial court did not err by failing to consider the lack of DNA evidence dispositive.” Id. at ¶ 22. 

### {¶3} In 2020, Martin filed his petition for postconvi ction relief in the trial court. He argued that his peti tion was unt imely because he had to request , from his attorney , a copy of the “Official Crime Laboratory Report,” which set forth the results of the DNA testing performed during the investigation of the crimes. The lab oratory report stated that Martin’s D NA was not f ound on the victim’s clothing and that the
other DNA

- profile found on the clothing (not the victim’s) was “not suitable for entry into the CODIS database.” Martin contends in his first postconviction claim that given the results of the laborat ory report, his trial counsel was ineffective by failing to discuss this report at trial or submit ting it into evidence. In his second claim, he contends that the police investigation was “shoddy” because despite the laboratory report showing
his DNA

- prof

ile was not found on the victim’s clothing, the police had failed to question known sex offenders living near the location where the crime had occurred.OHIO FIRST DISTRICT COURT OF APPEALS

3 

### {¶4} In August 2021, Martin filed a motion for a new trial on the grounds of irregularity in the proceeding s , which pre ve nted him from having a fair trial. He argued that the laboratory report, which indicates a lack of DNA evidence connecting him to the charged offe nses , demonstrates his actual innocence. 1 

### {¶5} The trial court denied both the petition for postco nviction rel ie f and the motion for a new trial. Martin now appeals from that judgment raising two assignments of error . Under those assignments, he argues the trial court erred by denying his petition and new - trial motion where he demonstrated that he had been denied a f

air trial due to ineffective assistance of counsel and the state’s suppression
of a “shoddy” police investigation.

No Jurisdiction to Entertain the Petition 

### {¶6} Martin filed his postconviction petition well after the time prescribed by
R.C. 2 953.21(A)(2) had expired. A trial court may entertain a late postconviction petition only if the petition satisfies the jurisdictional requirements of R.C.
2953.23 (A)(1) or (A)(2)

. T he petition must show either that the petitioner was unavoidably prevente d from timel y discovering the facts upon which the postconviction claims depend, or that the postconviction claims are predicated upon a new and retrospectively applicable right recognized by the United States Suprem e Co urt since the time for filing the pe tition had e xpired. R.C. 2953.23(A)(1)(a). And the petitioner must show “by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of t he offense of which the petitioner w as convicted * * *.” R.C. 2953.23(A)(1)(b). The petitioner may also show he or she was convicted of a felony , had postconviction DNA testing p erformed , and the results of that testing establish by clear and convinci ng

1 Mar tin states t hat he had moved for a new trial in May 2020 , and submitted a file

- stamped copy of the new

- trial motion dated May 8, 2020. But t hat motion was never docketed i n the trial court’s journal . Nevertheless, i t is similar , if not identical , to the 2021 motion and that motion was considered by the trial court.OHIO FIRST DISTRICT COURT OF APPEALS

4 e vidence actual innocence of the felo ny offense. R.C. 2953.23(A)(2). If the petitioner does not satisfy either of those jurisdictional requirements, the petition is subject to dismissal without a hearing. See R.C. 2953.21(D) and (F) and 2953.23(A). 

### {¶7} Mar tin has not satisfied the jurisdiction al requirement s of R.C

. 2953.23(A)(2) because he did not have postconviction DNA testing performed. Nor has he satisfied the jurisdictional requirements under R.C. 2953.23(A)(1). Martin has not demonstrated that he w as un avoidably prevented from discoverin g the labora tory report. The record demonstrates that (1) Martin’s trial counsel re ceived the report prior to trial ; (2) the report was admitted as an exhibit at trial; and (3) trial counsel argued that the laborato ry re port demonstrated that Martin was n ot guilty of rape because his DNA

- profile was not found on the victim’s clothing. Although Martin argues that he had to contact his counsel to get a copy of the laboratory report, he had ample time to do so within t he ye ar after his conviction. Further, Martin canno t show that but for constitutional error at trial, no reasonable factfinder would have found him guilty of the charged offenses. The trial court considered the laboratory report and still found him guilt y due to his con fession and the victim’s testimony. 

### {¶8} Because Martin’s late postc o nviction petition did not satisfy R.C. 2953.23’ s jurisd ictional standards , we hold that the t rial court properly declined to entertain the petition. Because the trial court had n o jurisdiction to entertain the pet ition, the p etition was subject to dismissal without an evidentiary hearing. See R.C. 2953.21(D) and 2953.23(A).

No Jurisdiction to Entertain the New

- Trial Motion 

### {¶9} A new

- trial motion on the grounds of an “irregula rity in the proceedings” must be filed within 14 da ys of the verdict. If not filed within the applicable time frame, the new

- trial motion may be filed within seven days after theOHIO FIRST DISTRICT COURT OF APPEALS

5 granting of leave to file a new

- trial motion. Crim.R. 33(B). Here, Martin neve r moved for leave to file his motio n. Therefor e, because Martin did not comply with Crim.R. 33(B), the new

- trial motion was not properly before the court. State v. Howard , 1 st Dist. Hamilton No. C

- 210285, 2022

- Ohio

- 2159, ¶ 23. Accordingly, we hold t hat the trial court properly declined t o entertain the motion. Conclusion 

### {¶10} Because the trial court had no jurisdiction to entertain the petition or the motion, both were subject to dismissal. We, therefore, modify the court’s judgment denying the petitio n an d motion to reflect their dismissal

. See A pp.R

. 12(A)(1)(a). The judgment of the trial court is affirmed as modified. Judgment affirmed as modified.

M YERS , P.J., and B OCK , J
. , concur.

Please n ote: The court has r ecorded its own entry on the date of the release of this opinion

.