[Cite as State v. Dawson , 2012-Ohio-1226.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2011 CA 42

v. : T.C. NO. 09CR160 JAMES B. DAWSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 23rd day of March , 2012.

. . . . . . . . . . ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee JAY A. ADAMS, Atty. Reg. No. 0072135, 424 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Jame s B. Dawson appeals a decision of the Greene County Court of Common Pleas dismissing his petition for post-convicti on relief. The trial court issued its opinion dismissing Daws on’s petition on July 18, 2011. Dawson filed a2 timely notice of appeal with this Court on August 17, 2011. {¶ 2} We set forth the history of the case in State v. Dawson , 2d Dist. Greene No. 2009 CA 63, 2010-Ohio-3904 (hereinafter “ Dawson I ”), and repeat it herein in pertinent part: The facts of this case arise from an incident that occurred on March 10, 2009, when Detective Cyr of the Fa irborn Police Department was online in an internet chat room, posing as a f ourteen year-old girl under the name of “kate14roxohio.” Upon entering the chatroom, Officer Cyr was contacted, via a private instant message, by Appellant, age fifty-two, who was utilizing the username “temene.” Appellant, in his initial message, asked “Kate” her age, gender, and where she lived. Appellant learned that “Kate” was a fourteen year-old female from Fairborn. Appellant and “Kate” exchanged photos. Appellant sent pictures of h imself, and Officer Cyr sent photos of “Kate,” which were actually photos of Officer Cara Houck of the Fairborn Police Department taken when she wa s fourteen years old. Appellant introduced himself as Jim, and complimented “Kate,” noting she was “hot,” called her a “gorgeous girl,” and told her she looked good in a bathing suit. Appellant initiated a more sexual dialogue, as ked “Kate” about oral sex, and indicated that if “Kate” perfo rmed oral sex on him he would perform it on her, and he would neve r tell anyone about it. Appellant then discussed how they would be able to meet and assured “Kate” that he would wear a condom so she would not become pregna nt. Appellant ma de more sexual3 comments, indicating he wished to kiss her all over, suck on her breasts, and reiterated his desire to perform oral sex on “Kate.” They made plans to chat on the next day, March 11, so they coul d arrange to get together. Before ending the conversation, A ppellant mentioned that he wanted pictures of “Kate” either clothed or nude, offering to buy her a camera to take the pictures. Appellant also inquired as to what style of underwear “Kate” wore. Appellant and “Kate” made arrang ements to meet on March 11, 2009, at 4:15 P.M. at the Long John Silver s restaurant located on Dayton-Yellow Springs Road in Fairborn, Ohio. When Appellant arrived in a red Buick Rendezvous, the same car he described to “Kate,” he was arrested by the Fairborn Police Department. Thereafter, Appellant wa s taken to the Fairborn police station, where he was questioned by Detective Cyr. After being informed of his rights, Detective Cyr showed copies of the internet chats to Appellant, who admitted

to the conversation between himself a nd “Kate.” In a written statement he made, Appellant wrote, “The aforementioned incident is one that I have never

done before and I know that I was wr ong for engaging in the chat.” Following a jury trial, Appellant was found guilty of Importuning and Attempted Unlawful Sexual Conduct With A Minor. At sentencing, the trial court sentenced Appellant to twelve months for Importuning, as well as eighteen months for Attempted Unla wful Sexual Conduct With A Minor.

The court ordered the sentences be se rved consecutively for an aggregate4 sentence of thirty months. {¶ 3} Dawson subsequently appealed his c onviction and sentence. We affirmed the judgment of the trial court in Dawson I issued on August 20, 2010. Prior to that, however, Dawson filed a petition for post-c onviction relief on Marc h 24, 2010. On March 25, 2010, Dawson filed a motion requesting leave of the trial court to file a supplemental petition for post-conviction relief within sixty days, which the court granted. Thereafter, Dawson requested and was granted a fourteen day extension in which to file the supplemental petition. Dawson u ltimately filed his supplementa l petition over a year later on May 7, 2011. In a decision filed on July 18, 2011, the trial court dismissed Dawson’s petition for post-conviction relief, including all of the supplem ental materials, as untimely

filed. {¶ 4} It is from this judgment that Dawson now appeals. {¶ 5} Dawson’s sole assignment of error is as follows: {¶ 6} “THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S

PETITION FOR POST-CONVICTION RELIEF WITHOUT GRANTING A HEARING.” {¶ 7} Initially, we note that Dawson does not dispute that his petition for post-conviction relief was un timely. R.C. 2953.21(A)(2) provides that a petition for post-conviction relief must be f iled no later than one hundred ei ghty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction. R.C. 2953.23(A) provi des that a court may not en tertain a petition filed after the expiration of the period prescribed in division (A) of R.C. 2953.21 unless division (A)(1) or (2) applies:5 (1) Both of the following apply: (a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon wh ich the petitioner must rely to present the claims for relief. (b) Subsequent to the period prescr ibed in division (A)(2) of section

2953.21 of the Revised Code or to th e filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to pers ons in the petitioner’s situation, and the petition asserts a claim based on that right. (2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact-finder would have found the petitioner guilty of the o ffense of which the petitioner was

convicted. {¶ 8} In the instant case, the trial tran scripts were filed on September 23, 2009. One hundred eighty days from September 23, 2009, fell on March 22, 2010. As previously stated, Dawson did not file his initial petition until March 24, 2010. We note that, despite being granted a seventy-four da y extension, in which to file his supplemental petition, he did not do so. Nevertheless, his initial filing was untimely. {¶ 9} In the context of a petition for post-c onviction relief, the trial court lacks jurisdiction to consider an untimely petition. State v. Beavers , 2d Dist. Montgomery No. 20572, 2005-Ohio-1205, ¶ 19 (“ * * * the provisions of R.C. 2953.23(A) are jurisdictional in nature, and * * * absent a petitioner’s showing that the requisites contained therein have6 been met, a trial court is without jurisd iction to entertain an untimely petition for post-conviction relief. Unless it appears from the record that [Petitioner] was unavoidably prevented from discovering facts upon which he relied in his petition, or that the United States Supreme Court has recognized a new federal or state right that applies retroactively to [Petitioner], and that but for constitutional error at trial no reasonable factfinder would have found [Petitioner] guilty, we are bound to conclude the trial cour t was without jurisdiction to consider his petition for post-conviction relief.”) {¶ 10} In support of his petition for post-c onviction relief, Dawson submitted his own self-serving affidavit, as well as that of his wife, in which they assert that Dawson

received ineffective assistance of trial counsel. Dawson also contends that a number of unspecified due process and constitutional violations occurred that, at the very least, warranted a hearing on his petition. However, Da wson’s affidavit, as well as that of his wife, are largely a criticism of his attorney’s failure to succeed in a defense that Detective Cyr was a “hostile invader” upon his computer system. {¶ 11} Upon review, we conclude that Da wson did not overcome the threshold requirement set out in R.C. 2953.23(A)(1)(a) that he was “una voidably prevented” from the discovery of the alleged ineffec tive assistance of trial counsel dur ing the original trial in this

matter. Dawson made no mention of any obstacles to his di scovery relevant to this matter, nor does he provide a reasonable basis for his failure to file his petition in a timely manner. Moreover, Dawson makes no attempt to argue th at a new federal or state law has been enacted that applies retroac tively to his situation. {¶ 12} Because Dawson failed to establish any of the criteria set forth in R.C.7 2953.23(A), we find the trial court was correct in its determin ation that it did not have jurisdiction to entertain his pe tition for post-conviction relief. {¶ 13} Dawson’s sole assignment of error is overruled. {¶ 14} Dawson’s sole assignment of error ha ving been overruled, the judgment of

the trial court is affirmed.

. . . . . . . . . . GRADY, P.J. and HALL, J., concur. Copies mailed to:

Elizabeth A. Ellis Jay A. Adams Hon. Stephen A. Wolaver