[Cite as State v. Garst , 2014-Ohio-4704.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 2014 CA 64 Plaintiff-Appellee : : Trial Court Ca se No. 09CR54 v. : : MATTHEW GARST : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 24th da y of October, 2014.

. . . . . . . . . . . RYAN A. SAUNDERS, Atty. Reg. #0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee MATTHEW GARST, Inmate No. 625-896, London Co rrectional Institution, P. O. Box 69, London, Ohio 43140 Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Matthew Garst appeals pro se from the tr ial court’s denial of his petition forpost-conviction relief. {¶ 2} Garst advances four assignme nts of error. First, he c ontends the tria l court erred in denying the petition as untimely. Second, he cla ims the trial court erre d in failing to make findings of fact and conclusions of law. Third, he asserts that the trial court erred in denying the petition where it contained a meritorious claim. Fourth, he maintains that the trial court erred in failing to hold an evidentiary hearing. {¶ 3} The record reflects that Garst was indicted on charges of aggravated murder, murder, felonious assault, and aggravated robbe ry. He ultimately pled guilty to one count of murder, and the other charges were dismissed. On February 26, 2010, th e trial court filed a judgment entry imposing a prison term of fifteen years to life. (Doc. #25). In June 2012, Garst moved for leave to file a delayed appeal. This court denied the motion the following month. Thereafter, in December 2013, Garst petitioned for post-conviction relief under R.C. 2953.21, et. seq. In support, he alleged ine ffective assistance of counsel based on counsel’s failure to investigate a potential post-traumatic-stress-di sorder (PTSD) defense or a “manslaughter defense” based on a sudden passion or fit of rage brought on by PT SD (Doc. #34). The trial court denied the petition, noting that it was untimely a nd that Garst had “failed to establish any exception set forth in O.R.C. §2953.23 that applie s to the factual history of his case.” (Doc.#37). This appeal followed. {¶ 4} In his first assignment of error, Garst challenges the trial court’s finding of untimeliness. He argues that he was unavoidably prevented from obtaining the materials needed to file his petition sooner. Therefor e, he asserts that his petition f it within a statutory exception to the ordinary time limit for seek ing post-conviction relief. {¶ 5} If no direct appeal is taken, a petiti on for post-conviction re lief generally must 3

 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). “Trial courts lack jurisd iction to consider an untimely petition for post-conviction relief, unl ess the untimeliness is ex cused under R.C. 2953.23(A).” State v. Current, 2d Dist. Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 16. In turn, R.C. 2953.23(A)(1) authorizes a trial court to entertai n an otherwise untimely petition if the petitioner shows that he was unavoidably prevented from discovering the facts upon which he relies and “shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable

factfinder would have found the petitioner guilty of the offens e of which the petitioner was convicted[.]” {¶ 6} Here Garst did not file a di rect appeal from his conviction. 1 He also did not file his petition for post-conviction relie f within the required 180-day wi ndow. In fact, he waited until December 2013—close to four years after his February 2010 conviction— to file his petition. Although Garst did not directly a ddress his untimeliness be low, he contends on appeal that “his right to file pursuant to R.C. 2953.23 is paten tly obvious from the face of the petition and its supporting affidavits.” (Appellant’s brief at 3). We disagree.

1 As noted above, he did move for leave to file a delayed appeal. But this co urt denied the motion. {¶ 7} The essence of Garst’s petition was that his trial counsel provided ineffective assistance by failing to investigate possible defenses to the murder charge based on his affliction with PTSD. Garst argued that he was a Gulf war veteran, that he had been diagnosed with PTSD while in prison, that he had suffered from the disorder at the time of his offense, that his attorney was aware of evidence indicating that he suffere d from PTSD, and that his attorney should have investigated PTSD and consulted a PTSD expert before allowing him to plead guilty. (Doc. 4

 #34). After filing his petition, Gars t filed the following supporting materials: (1) an unsworn January 2014 letter from his mother (which he refe rs to as an affidav it), (2) unauthenticated copies of January 2014 medication consent form s showing that he had been prescribed medication in prison, and (3) his own February 2014 affidavit. (Doc. #35). {¶ 8} In her letter, Garst’s moth er claimed she had told Gars t’s trial counsel that she believed her son was suffering fro m PTSD. Garst’s mother further alleged that counsel had failed to conduct an adequate follow-up i nvestigation into the PTSD issu e. For his part, Garst averred, among other things: “It was brought to counsel ’s attention that I suffer from PTSD. Counsel

refused to even look into the ma tter and belittled the issue while refu sing to notify the Court that this altered my mental capacity.” Garst also averre d that he had been receiving PTSD treatment in prison. {¶ 9} On appeal, Garst argues that his “supportin g affidavits” (i.e., his mother’s letter and his own affidavit) “were signed in Janua ry and February 2014 and could not have been obtained at an earlier date.” (A ppellant’s brief at 3). He acknow ledges that those documents demonstrate his family’s awareness of his mental-health issues before he pled guilty. ( Id . at 3-4). He insists, however, that he “was unable to provide evidence of [a PTSD] diagnosis until he received medical treatment from the Ohio Depa rtment of Reha bilitation and Corrections in 2013.” ( Id . at 4). Therefore, Garst claims he wa s unavoidably prevented from discovering the necessary information earlier. {¶ 10} We find Garst’s argument to be unpers uasive. His mother’s letter and his own affidavit establish (1) that they both knew or su spected while the case was pending below that he suffered from PTSD and (2) that they both knew de fense counsel had not investigated or raised 5

 the issue to their satisfaction. His mother’s letter stated that she told de fense counsel she “felt” her son was suffering from PTSD. Ga rst’s affidavit stated that de fense counsel was told he did suffer from PTSD. We are unpersuaded that Garst was required to obtain a medical diagnosis in prison, 2 years after his conviction, befo re challenging his attorney’s alleged failure to investigate and raise the PTSD issue. In fact, we see no reason why Garst’s mother could not have written her letter immediately after her s on’s conviction. At that time, Gars t likewise could have filed an affidavit stating that he had or believed he had PTSD, that his a ttorney had been so advised, and that his attorney had failed to look into the issue. Having reviewed the record, we are unconvinced that Garst was unavoidably prevente d from discovering sufficient evidence of his alleged PTSD earlier.

2 The record actually contains little evidence that Garst, in fact, was diagnosed with PTSD in prison. Other than his own affidav it addressing the issue, Garst has provided two unauthenticated copies of medication consent forms. They indicate that he has been prescribed Prazosin and Celexa in prison. According to one of the forms, Pr azosin is used to reduce blood pressure, reduce symptoms of PTS D, and reduce nightmares and flashbacks. The form fails to indicate wh ether Garst suffers from one or all of these problems. We infer from the other form that Celexa is an antidepressant that also is used to treat obsessive-compulsive disorder, panic disorder, and other anxie ty disorders.[Cite as State v. Garst , 2014-Ohio-4704.] {¶ 11} We note too that Garst’s affidavit itself failed to indicate when he was diagnosed with PTSD in prison. On that issue, he averre d only that “[s]ince my incarceration I’ve been receiving mental health treatment for my PTSD * * *.” (Garst affidavit at pg. 1). He was sentenced to prison, however, in February 2010, leav ing open the distinct possibility that received a PTSD diagnosis long before he filed his petition. Given his failure to specify when he received a PTSD diagnosis, his affidavit and supporting materials do not esta blish that he was unavoidably prevented from filing a timely petition even if a definitive diagnosis were required. 3 {¶ 12} Finally, we note that Garst has failed ev en to address the a dditional requirement under R.C. 2953.23(A)(1) to show by clear and c onvincing evidence that, “but for constitutional error at trial,” no reasona ble factfinder would have found him guilty of murder. 4 For the foregoing reasons, we see no error in the trial court’s finding of untimeliness. The first assignment of error is overruled.

3 The fact that Garst was prescribed Prazosin and Celexa in Januar y 2014 falls short of establishing that he first was diagnosed with PTSD then. It is not clear that the drugs were prescribed to treat PTSD. But even assuming that they were, that particular pres cription may have been written long after Garst’s diagnosis.

4 Although we need not decide the issue in this case, one Ohio appellate court has questioned whether a defendant who enters a guilty plea can establish “constitutional error at trial.” See , e.g. , State v. Holson , 5th Dist. Ashland No. 13 COA 020, 2014-Ohio-365, ¶ 26. Several others definitively have held that a defendant who enters a guilty plea canno t demonstrate “constitutional error at tri al” under R.C. 2953.23(A)(1). See , e.g. , State v. Hairston , 10th Dist. Franklin No. 13AP-225, 2013-Ohio-3834, ¶ 8; State v. Lewis , 4th Dist. Lawrence No. 11CA29, 2013-Ohio-1327, ¶ 8; State v. Demyan , 9th Dist. Lorain No. 11CA0 100096, 2012-Ohio-3634, ¶ 4; State v. Pough , 11th Dist. Trumbull No. 2003-T-0129, 2004-Ohio-3933, ¶ 17; State v. Moore , 8th Dist. Cuyahoga No. 82734, 2003-Ohio-4819, ¶ 16; Cf. State v. Warner , 2d Dist. Greene No. 2005-CA-84, 2006-Ohio-3188, ¶ 11 (finding that a defendant seeking to file a post-conviction relief petit ion out of time cannot demonstrat e “constitutional error at trial ” where he raises a sentencing issue); State v. Carson , 2d Dist. Greene No. 2003-CA-76, 2004-Ohio-2741, ¶ 20 (“[C]onsideration of an untimely filed petition for post-conviction relief requires the rather extraordinary showing, by clear and convincing evidence, that, bu t for the constitutional error, ‘no reasonable fact finder wou ld have found the petitioner guilty of the offense of which the petitioner was convicted.’ This is an especially difficult showing to make in the context of a no-contest plea, since there is no trial testimony to frame the facts.”).[Cite as State v. Garst , 2014-Ohio-4704.] {¶ 13} In his second assignment of error, Garst contends the trial cour t erred in failing to make findings of fact a nd conclusions of law. This argument lacks merit. A trial court “has no duty to issue findings of fact and conclusions of law on * * * untimely petitions for postconviction relief.” State ex rel. George v. Burnside , 118 Ohio St.3d, 2008-Ohio-2702, 889 N.E.2d 533, ¶ 6. This rule applies even when a de fendant contends he wa s unavoidably prevented from discovering the fact s on which he relies. Id. Moreover, even if a petition is timely filed, the trial court’s decision need only “apprise petitioner of the grounds fo r the judgment of the trial court and to enable the appellate courts to properly determine appeals in such a cause.” Jones v.

State , 8 Ohio St.2d 21, 22, 222 N.E.2d 313 (1966).The tr ial court’s decision finding that the petition was untimely does that. Accordingly, th e second assignment of error is overruled. {¶ 14} In his third assignment of error, Garst claims the trial court erred in denying his petition where it contained a meritorious claim. We disagree. Regardless of any possible merit, the petition was untimely. Therefore, the trial court could not consider it. Current at ¶ 16. The third assignment of error is overruled. {¶ 15} In his fourth assignment of error, Garst asserts that the trial court erred in failing to hold an evidentiary hearing. Again, we disa gree. A trial court is not required to hold an evidentiary hearing on a petiti on it has found to be untimely. State v. Singleton , 2d Dist. Montgomery No. 21289, 2006-Ohio-4522, ¶ 22. The f ourth assignment of error is overruled. {¶ 16} The trial court’s judgment is affirmed.

. . . . . . . . . . . . . FAIN, J. and WELBAUM, J., concur. Copies mailed to: Ryan A. Saunders 8

 Matthew Garst Hon. Richard J. O’Neill