[Cite as State v. Williams, 2022-Ohio-2043.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110941

v. :

DARRYL W. WILLIAMS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 16, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-17-622120-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Tasha L. Forchione, Assistant Prosecuting 

Attorney, for appellee. 

Dean A. Colovas, for appellant. 

CORNELIUS J. O’SULLIVAN, JR., J.:

Defendant-appellant Darryl Williams (“appellant”) appeals from the 

trial court’s September 24, 2021 judgment summarily denying his motion to 

withdraw his plea and/or for postconviction relief. After a thorough review of the 

law and facts, we affirm.
Procedural History

In October 2017, appellant was charged in a multicount indictment 

with the following crimes: 

• three counts of rape, each with one- and three-year firearm 

specifications, a sexually violent predator specification, a notice of prior 

conviction, and a repeat violent offender specification;

• one count of gross sexual imposition with one- and three-year firearm 

specifications, and a sexually violent predator specification; 

• one count of kidnapping with one- and three-year firearm 

specifications, a sexual motivation specification, sexually violent 

predator specification, notice of prior conviction, and repeat violent 

offender specification; 

• one count of aggravated robbery with one- and three-year firearm 

specifications, notice of prior conviction, and repeat violent offender 

specification; and 

• one count of kidnapping with one- and three-year firearm 

specifications, notice of prior conviction, and repeat violent offender 

specification.

The charges stem from a 1998 rape of a high-school student while she 

was on her way to school. The victim reported the crime and stated that the suspect 

either ejaculated or “dripped” semen on to the floor and/or wall at the crime scene. 

The police swabbed the wall for evidence.
The case was “cold” until 2017 when an investigator from the Cuyahoga 

County Prosecutor’s Office, Anthony Kratsas (“Kratsas”), was assigned to review it. 

After his review, appellant was indicted on the charges within.

After being indicted, in December 2017, appellant filed a motion for a 

DNA expert, which the trial court granted. In January 2018, appellant filed a motion 

to suppress a DNA swab sample that Kratsas obtained from him, alleging that the 

sample was taken without a warrant or valid consent. Appellant further alleged that 

the sample was “mishandled, contaminated, and no chain of custody was properly 

maintained.” The state opposed the motion.

The trial court held a hearing in June 2018 on appellant’s suppression 

motion. At the beginning of the hearing, defense counsel informed the trial court 

that he had not yet received the results from the DNA testing he requested and, thus, 

asked the court to reserve ruling on the suppression motion. The hearing went 

forward with the understanding that the defense would supplement its motion to 

suppress if new evidence arose as a result of its testing. 

Approximately one week after the hearing, and prior to the court’s 

ruling on appellant’s suppression motion, appellant changed his plea and entered a 

guilty plea to one count of an amended charge of rape (Count 1) with deletion of all 

the specifications and notice of prior conviction. All of the remaining counts, 

notices, and specifications were dismissed. Prior to pleading guilty, appellant’s 

counsel stated that appellant was withdrawing his motion to suppress, 

acknowledging that it was “moot.” In June 2018, the trial court sentenced appellant 
to a ten-year prison term, to be served consecutive to a sentence in another case he 

was then serving.

Appellant filed a direct appeal, wherein he challenged the voluntariness 

of his guilty plea and his sentence. State v. Williams, 8th Dist. Cuyahoga 

No. 107416, 2019-Ohio-1348. This court overruled his assignments of error and 

affirmed the judgment of the trial court. Id. at ¶ 1, 7, 10-11.

In April 2021, appellant filed the subject motion to withdraw his plea 

and/or for postconviction relief. The trial court summarily denied the motion. 

Factual History: As Adduced from Testimony at Suppression Hearing

Investigator Kratsas testified that, during his initial review of this case,

he discovered that the swabbing retrieved by the police from the wall at the crime 

scene had never been tested. The evidence was stored in a property room at the 

Cleveland Division of Police’s headquarters. Kratsas requested and received the 

evidence from the police. Upon receiving the evidence, Kratsas placed it in a secured 

locker at his office and recorded receipt of it in a logbook.

Another investigator from the Cuyahoga County Prosecutor’s Office, 

Justin Rotili (“Rotili”), submitted the evidence to the Ohio Bureau of Criminal 

Investigation (“BCI”). The evidence was contained in one envelope marked 

“scrapings of stains recovered from the crime scene,” and was accompanied with a 

“Laboratory Evidence Submission” form, which assigned 13-38679 as the BCI case 

number.
In February 2017, BCI informed the Cleveland police that a 

preliminary association was made between the subject specimen and appellant. BCI 

requested an additional sample from appellant for verification. Shortly thereafter, 

Kratsas met with appellant in the Cuyahoga County Jail to interview him about this 

offense and obtain buccal swabs. The interview was recorded; the pertinent portions

of it were played at the suppression hearing. Appellant consented to the collection 

of his DNA and signed a “consent to collect biological DNA analysis” form. Kratsas 

collected the evidence, placed it in a first envelope which he sealed, placed the first 

envelope in a second envelope which he taped sealed, placed the evidence in a 

secured locker at his office, and recorded the evidence in a logbook. The investigator 

testified that he sealed the envelopes with tape, instead of licking them, so as to not 

potentially contaminate the evidence.

In March 2017, Rotili submitted appellant’s DNA to BCI. The 

envelope was marked “Hit Verification Standard — from Darryl Williams” and was 

accompanied with a “Laboratory Evidence Submission” form with the same BCI 

case number as the first submission — 13-38679. In a letter dated March 17, 2017, 

BCI informed the Cleveland police that appellant’s DNA was a match to the first 

sample obtained from the crime scene. BCI provided a chain of custody report for 

the subject case number which documented the evidence log from September 2013 

through March 2017.
Assignments of Error

Appellant raises the following two assignments of error for our review:

I. The subject matter is not a final appealable order as a result of error 

on behalf of the trial court by not issuing a finding of facts/conclusions 

of law setting forth its reasons for denial of Defendant-Appellant’s 

motion for [postconviction] relief/withdrawal of Plea.

II. The trial court abused its discretion by denying DefendantAppellant’s motion for [postconviction] relief/withdrawal of plea for 

reasons that Defendant-Appellant entered into said plea without 

knowledge of evidence which had been provided his to his counsel 

which would have likely led to his exoneration.

Law and Analysis

Final, Appealable Order

In his first assignment of error, appellant contends that the trial 

court’s judgment denying his motion without findings of fact and conclusions of law 

is not a final, appealable order. He requests that we remand the case to the trial 

court with an order that it issue findings of fact and conclusions of law.

Postconviction proceedings are a collateral civil attack on a judgment 

and are treated as any other civil postjudgment motion. State v. Apanovitch, 107 

Ohio App.3d 82, 87, 667 N.E.2d 1041 (8th Dist.1995). Ordinarily, findings of fact 

and conclusions of law are required when a court dismisses a petition without 

holding an evidentiary hearing. State ex rel. Brown v. Court of Common Pleas of 

Coshocton Cty., 23 Ohio St.3d 46, 46-47, 491 N.E.2d 303 (1986). However, the 

Supreme Court of Ohio has clarified that the failure to issue findings of fact and 

conclusions of law, when required, is not a jurisdictional impediment to appealing 

the denial of a postconviction relief petition. State ex rel. Penland v. Dinkelacker, 
162 Ohio St.3d 59, 2020-Ohio-3774, 164 N.E.3d 336, ¶ 3, overruling State ex rel. 

Ferrell v. Clark, 13 Ohio St.3d 3, 469 N.E.2d 843 (1984), and State v. Mapson, 1 

Ohio St.3d 217, 438 N.E.2d 910 (1982); see also State ex rel. Howard v. Saffold, 8th 

Dist. Cuyahoga No. 111031, 2022-Ohio-521, ¶ 9, fn. 2; State v. Conner, 2020-Ohio4310, 158 N.E.3d 162, ¶ 3-4 (8th Dist.). 

Further, findings of fact and conclusions of law are not required when 

a trial court denies a motion to withdraw a plea. Harwell v. State, 8th Dist. 

Cuyahoga No. 81664, 2002-Ohio-5858, ¶ 4. Moreover, as will be discussed below, 

findings of fact and conclusions of law were not required in this case because 

appellant’s petition was untimely.

Thus, the trial court’s judgment in this case is a final, appealable order. 

Appellant’s first assignment of error is therefore overruled.

In his second assignment of error, appellant contends that the trial 

court abused its discretion by denying his motion to withdraw his plea and/or for 

postconviction relief. 

Withdrawal of Plea

Pursuant to Crim.R. 32.1, a trial court can set aside a judgment of 

conviction after it imposes sentence, and may allow the defendant to withdraw his 

or her plea, only “‘to correct a manifest injustice.’” State v. Bell, 8th Dist. Cuyahoga 

No. 87727, 2007-Ohio-3276, ¶ 10, quoting State v. Smith, 49 Ohio St.2d 261, 264, 

361 N.E.2d 1324 (1977). The individual seeking vacation of the plea bears the 
burden of establishing the existence of a “manifest injustice.” Smith at paragraph 

one of the syllabus.

“Manifest injustice” is an extremely high standard that permits the 

court to allow a plea withdrawal only in “extraordinary cases.” State v. Herrera, 

3d Dist. Allen No. 1-01-126, 2001 Ohio App. LEXIS 5769 (Dec. 20, 2001). A 

manifest injustice is defined as a “clear or openly unjust act.” State ex rel. Schneider 

v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998). Some courts have 

referred to it as “an extraordinary and fundamental flaw in the plea proceeding.” 

State v. Lintner, 7th Dist. Carroll No. 732, 2001 Ohio App. LEXIS 4267 (Sept. 21, 

2001); State v. Wheeler, 2d Dist. Montgomery No. 18717, 2002 Ohio App. LEXIS 

207 (Jan. 25, 2002).

A postsentence motion to vacate a guilty plea is addressed to the 

sound discretion of the trial court and an appellate court’s review of a trial court’s 

denial of a postsentence motion to withdraw a guilty plea is limited to a 

determination of whether the trial court abused its discretion. State v. Blatnik, 17 

Ohio App.3d 201, 202, 478 N.E.2d 1016 (6th Dist.1984). The decision whether to 

hold a hearing on a postsentence motion to withdraw a guilty plea is also left to the 

discretion of the trial court. Smith at paragraph two of the syllabus.

The following reasons support the trial court’s decision to summarily 

deny appellant’s request to withdraw his plea without a hearing: (1) the trial court 

lacked jurisdiction to consider the motion; (2) the motion was untimely; (3) the 
claims appellant raises are barred under the doctrine of res judicata; and (4) 

appellant has failed to demonstrate ineffective assistance of counsel.

Trial Court Lacked Jurisdiction to Consider Appellant’s Motion

A trial court has no jurisdiction to consider a defendant’s motion to 

withdraw his or her guilty pleas under Crim.R. 32.1 after an appellate court has 

affirmed the defendant’s convictions. See State ex rel. Special Prosecutors v. 

Judges, Belmont Cty. Court of Common Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162 

(1978):

Crim.R. 32.1 does not vest jurisdiction in the trial court to maintain and 

determine a motion to withdraw the guilty plea subsequent to an 

appeal and an affirmance by the appellate court. While Crim.R. 32.1 

apparently enlarges the power of the trial court over its judgments 

without respect to the running of the court term, it does not confer 

upon the trial court the power to vacate a judgment which has been 

affirmed by the appellate court, for this action would affect the decision 

of the reviewing court, which is not within the power of the trial court 

to do.

Id. at 97-98.

Therefore, after this court affirmed appellant’s conviction in Williams, 

8th Dist. Cuyahoga No. 107416, 2019-Ohio-1348, the trial court lacked jurisdiction 

to consider his motion to withdraw his guilty plea. Thus, the trial court did not abuse 

its discretion in denying appellant’s motion to withdraw his guilty plea without a 

hearing. See State v. Lewis, 8th Dist. Cuyahoga No. 110448, 2022-Ohio-70, ¶ 13. 

Appellant’s Motion was Untimely

Crim.R. 32.1 places no temporal limitation on the ability of courts to 

“correct manifest injustice” by setting aside a conviction after a sentence and 
permitting the defendant to withdraw his or her plea. State v. Bush, 96 Ohio St.3d 

235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14. Nevertheless, timing may be 

considered by a court in exercising discretion to determine whether a defendant may 

withdraw his or her plea postsentencing, because “‘undue delay between the 

occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a 

motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the 

movant and militating against the granting of the motion.’” Id., quoting Smith, 49 

Ohio St.2d 261, 361 N.E.2d 1324, at paragraph three of the syllabus; see also State 

v. Crankfield, 7th Dist. Mahoning No. 13 MA 122, 2014-Ohio-2624, ¶ 9, fn. 1.

Appellant contended in his motion that he “did not learn of 

exculpatory evidence and/or deficiencies in the State’s case against him until after 

he agreed to accept a plea bargain and had been sentenced.” He filed his affidavit in 

support of his motion, wherein he averred that “[i]mmediately subsequent to being 

sentenced on June 21, 2018, I was handed a collection of emails by my attorney while 

I was being escorted off to jail.” In one of the emails, which appellant attached to 

his motion, the defense’s expert indicated that there were no samples to be tested in 

the envelopes the testing company received because the samples had been 

consumed. 

Appellant did not offer an explanation in his motion as to why it took 

him over two and one-half years to file the motion. Courts, including this one, have 

held that similar and less delays are unreasonable. See State v. Crespo, 8th Dist. 

Cuyahoga Nos. 109617 and 109741, 2021-Ohio-848, ¶ 14 (two and one-half year 
delay in filing motion deemed unreasonable where defendant failed to present any 

explanation justifying the delay); State v. Ray, 2d Dist. Champaign No. 2019-CA-31, 

2020-Ohio-4769, ¶ 15 (two-year delay considered unreasonable); State v. Morgan, 

10th Dist. Franklin No. 12AP-241, 2012-Ohio-5773, ¶ 13 (ten-month delay deemed 

unreasonable in light of defendant’s failure to present a reason in support of the 

delay); and State v. Miley, 8th Dist. Cuyahoga No. 83152, 2004-Ohio-641, ¶ 4 

(three-year delay unreasonable). 

Appellant’s delay of over two years, without explanation, was 

sufficient grounds for denial of his request to withdraw his plea.

Appellant’s Claims are Barred under the Doctrine of Res Judicata

Res judicata generally bars a defendant from raising claims in a 

Crim.R. 32.1 postsentencing motion to withdraw a guilty plea that he or she raised 

or could have raised on direct appeal. State v. Straley, 159 Ohio St.3d 82, 2019-

Ohio-5206, 147 N.E.3d 623, ¶ 23, citing State v. Ketterer, 126 Ohio St.3d 448, 2010-

Ohio-3831, 935 N.E.2d 9; see also State v. Dent, 8th Dist. Cuyahoga No. 100605, 

2014-Ohio-3141, ¶ 4; State v. Conner, 8th Dist. Cuyahoga No. 98084, 2012-Ohio3579, ¶ 7. 

In his motion, appellant raised issues regarding chain of custody and 

the admission of the DNA evidence. The record demonstrates that prior to filing his 

direct appeal, appellant had numerous pieces of evidence relating to the testing 

results and the chain of custody report. Indeed, appellant averred in his affidavit 

that his “attorney made significant headway in cross-examining Investigator Kratsas 
and in exposing irregularities in the chain of custody process.” The record 

demonstrates that a copy of the transcript of the suppression hearing was available 

to appellant and his counsel when the record was filed in his direct appeal. All the 

issues appellant raises he would have been aware of at the time of his plea and 

sentencing. Appellant could have raised these issues on direct appeal, and he is now 

barred from raising them.

Appellant has Failed to Demonstrate Ineffective Assistance of 

Trial Counsel

Appellant also contends that his trial counsel was ineffective, and he 

would not have entered a guilty plea if he knew “there was a significant likelihood 

that the DNA evidence in the case very possibly could have been excluded.” 

A criminal defendant has the right to effective assistance of counsel at 

all “‘critical stages of a criminal proceeding,’” including when he or she enters a

guilty plea. Lee v. United States, 582 U.S. __ , 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 

(2017), quoting Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 

(2012); Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). 

To establish ineffective assistance of counsel, a defendant must 

demonstrate: (1) deficient performance by counsel, i.e., that counsel’s performance 

fell below an objective standard of reasonable representation, and (2) that counsel’s 

errors prejudiced the defendant, i.e., a reasonable probability that but for counsel’s 

errors, the outcome would have been different. Strickland v. Washington, 466 U.S. 

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio 
St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. 

“Reasonable probability” is “probability sufficient to undermine confidence in the 

outcome.” Strickland at 694.

Where a defendant enters a guilty plea, he or she waives the claim of 

ineffective assistance of counsel except to the extent that the ineffective assistance 

of counsel caused the defendant’s plea to be less than knowing, intelligent, and 

voluntary. State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.); State 

v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11. Accordingly, 

where a defendant has entered a guilty plea, the defendant can prevail on an 

ineffective-assistance-of-counsel claim only by demonstrating that there is a 

reasonable probability that, but for counsel’s deficient performance, he or she would 

not have pled guilty to the offenses at issue and would have instead insisted on going 

to trial. Vinson at id.; State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); 

Hill at 58-59. 

In Ohio, every properly licensed attorney is presumed to be 

competent. State v. Black, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing 

State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Thus, in evaluating 

counsel’s performance on a claim of ineffective assistance of counsel, the court must 

give great deference to counsel’s performance and “indulge a strong presumption”

that counsel’s performance “falls within the wide range of reasonable professional 

assistance.” Strickland at 689; see also State v. Powell, 2019-Ohio-4345, 134 

N.E.3d 1270, ¶ 69 (8th Dist.) (“‘A reviewing court will strongly presume that counsel 
rendered adequate assistance and made all significant decisions in the exercise of 

reasonable professional judgment.’”), quoting State v. Pawlak, 8th Dist. Cuyahoga 

No. 99555, 2014-Ohio-2175, ¶ 69.

Appellant acknowledged in his affidavit submitted in support of his 

motion that his trial counsel “made significant headway in cross-examining 

Investigator Kratsas and in exposing irregularities in the chain of custody process.” 

Appellant averred that because of counsel’s efforts “a plea bargain was offered to 

[him] wherein [he] was required to plead guilty to one count of rape with several 

other charges being nolled.” Further, appellant acknowledged that “[w]hile there 

were certainly problems with the way the evidence was taken and maintained, it was 

not a certainty that the motion to suppress would be granted” and therefore he pled 

guilty to “minimize [his] exposure” at sentencing.

Thus, appellant’s own averments undercut an ineffective-assistanceof-counsel claim. His averment that had he known about the emails “there is no 

chance that [he] would have agreed to the offered plea [he] accepted” is conclusory 

and self-serving. Conclusory, self-serving allegations and unsubstantiated 

assertions are insufficient to demonstrate a manifest injustice or to warrant a 

hearing on a motion to withdraw a guilty plea. See, e.g., State v. D-Bey, 8th Dist. 

Cuyahoga No. 109000, 2021-Ohio-60, ¶ 61; State v. Johnson, 12th Dist. Butler Nos. 

CA2010-12-327 and CA2011-02-019, 2011-Ohio-3015, ¶ 13. 

Appellant further asserts that “there is a strong likelihood” that his 

expert’s testimony “would have resulted in the disqualification of all DNA evidence 
against [him].” However, the Supreme Court of Ohio has held that “[q]uestions 

regarding the reliability of DNA evidence in a given case * * * go to the weight of the 

evidence rather than its admissibility.” State v. Foust, 105 Ohio St.3d 137, 2004-

Ohio-7006, 823 N.E.2d 836 ¶ 85. 

Appellant’s contention that his attorney could have gotten the state’s 

DNA expert disqualified is based on his mistaken belief that the evidence could not 

be tested by his expert because it had been fully “consumed” by the prosecutor. 

However, evidence in the record from the DNA technical leader at BCIindicated that 

the evidence was not consumed. The technical leader represented that the subject 

item, BCI item 3, was an envelope with three sealed envelopes. He explained how 

the evidence was analyzed and why it was not considered consumed as follows:

For Item 3.1, the analyst swabbed the inside of the envelope and cut all 

of this swab for DNA extraction. For Item 3.2, visible debris in the 

envelope was collected by the analyst onto a swab that was cut for DNA 

extraction. Item 3.3 also contained visible debris that was swabbed by 

the analyst and submitted for DNA extraction. In this situation, the 

sub-items 3.1, 3.2, and 3.3 were not reported as consumed because the 

analyst considered additional swabbings from the inside of the 

envelopes as a possibility for additional testing.

Regardless of whether the sample was consumed, unless a criminal 

defendant can show bad faith, the state’s failure to preserve potentially useful 

evidence — “of which no more can be said than that it could have been subjected to 

tests, the results of which might have exonerated the defendant” — does not 

constitute a violation of the Due Process Clause of the United States Constitution’s 

Fourteenth Amendment. Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 
L.Ed.2d 281 (1988). “The Due Process Clause of the Fourteenth Amendment does 

not require the prosecution to preserve samples for independent analysis unless the 

sample possesses an exculpatory value that is apparent before the sample is 

destroyed, and the defendant is unable to obtain comparable evidence by other 

reasonably available means.” State v. Estep, 73 Ohio App.3d 609, 612, 598 N.E.2d 

96 (10th Dist.1991). The evidence here was inculpatory, not exculpatory, and there 

was no evidence of bad faith on the part of the state. 

Appellant could have had the state’s results reviewed and analyzed by 

an independent expert, but trial counsel chose not to, a decision which is entitled to 

deference as strategy. See State v. Abercrombie, 8th Dist. Cuyahoga No. 88625, 

2007-Ohio-5071, ¶ 21 (Defense counsel’s decision not to call an expert to testify as 

to DNA methodology is a tactical decision). As this court has explained, there are 

strategic reasons why trial counsel would make this choice: “For example, it is 

possible that an expert witness on this topic may have approved the methodology 

and thereby bolstered the prosecution’s case.” Id.

Our review of the record before us demonstrates that appellant has 

failed to show that his trial counsel was ineffective. 

The trial court did not abuse its discretion by denying appellant’s 

postsentence motion to withdraw his plea. 

Petition for Postconviction Relief

A petition for postconviction relief is a collateral civil attack on a 

criminal judgment, not an appeal of the judgment. State v. Lenard, 8th Dist. 
Cuyahoga No. 108646, 2020-Ohio-1502, ¶ 8, citing State v. Steffen, 70 Ohio St.3d 

399, 410, 639 N.E.2d 67 (1994). To prevail on a petition for postconviction relief, a 

defendant must establish a violation of his or her constitutional rights that renders 

the judgment of conviction void or voidable. R.C. 2953.21.

It is well settled that a hearing is not automatically required whenever 

a petition for postconviction relief is filed. State v. Jackson, 64 Ohio St.2d 107, 110, 

413 N.E.2d 819 (1980). Rather, in considering a petition for postconviction relief, a 

trial court acts as a gatekeeper in determining whether a defendant will receive a 

hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51. 

A trial court may dismiss a petition for postconviction relief without a hearing 

“where the petition, the supporting affidavits, the documentary evidence, the files, 

and the records do not demonstrate that petitioner set forth sufficient operative facts 

to establish substantive grounds for relief.” State v. Calhoun, 86 Ohio St.3d 279, 714 

N.E.2d 905 (1999), paragraph two of the syllabus. This court reviews the trial court’s 

decision granting or denying a postconviction petition for an abuse of discretion. 

State v. Kent, 8th Dist. Cuyahoga No. 94562, 2010-Ohio-6368, ¶ 8, citing Gondor at 

¶ 52.

Ohio’s postconviction statute provides in relevant part:

Any person who has been convicted of a criminal offense * * * and who 

claims that there was such a denial or infringement of the person’s 

rights as to render the judgment void or voidable under the Ohio 

Constitution or the Constitution of the United States, * * * may file a 

petition in the court that imposed sentence, stating the grounds for 

relief relied upon, and asking the court to vacate or set aside the

judgment or sentence or to grant other appropriate relief. The 
petitioner may file a supporting affidavit and other documentary 

evidence in support of the claim for relief.

R.C. 2953.21(A)(1).

Appellant’s Petition was Untimely

Pursuant to R.C. 2953.21(A)(2), a postconviction petition shall be 

filed no later than 365 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 or adjudication. 

The record on appeal was filed August 14, 2018, thus, making the deadline for 

appellant to file a petition on August 14, 2019. Appellant filed his petition on April 5, 

2021, well past the deadline. He acknowledges that his petition was untimely but 

contends that the exceptions under R.C. 2953.23(A)(1) or (2) apply.

Under R.C. 2953.23(A)(1), a court may not entertain a petition filed 

after the expiration of the period unless:

(1) Both of the following apply:

(a) Either the petitioner shows that the petitioner was unavoidably 

prevented from discovery of the facts upon which the petitioner must 

rely to present the claim for relief, or, subsequent to the period 

prescribed in division (A)(2) of section 2953.21 of the Revised Code or 

to the filing of an earlier petition, 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.

(b) The petitioner shows by clear and convincing evidence that, but for 

constitutional error at trial, no reasonable factfinder would have found 

the petitioner guilty of the offense of which the petitioner was convicted 

or, if the claim challenges a sentence of death that, but for 

constitutional error at the sentencing hearing, no reasonable factfinder 

would have found the petitioner eligible for the death sentence.

(Emphasis added.) R.C. 2953.23(A)(1).
The other way a court may entertain a petition filed after the 

expiration of the period is if the following occurred: 

(2) The petitioner was convicted of a felony, the petitioner is an 

offender for whom DNA testing was performed under sections 2953.71 

to 2953.81 of the Revised Code or under former section 2953.82 of the 

Revised Code and analyzed in the context of and upon consideration of 

all available admissible evidence related to the inmate’s case as 

described in division (D) of section 2953.74 of the Revised Code, and 

the results of the DNA testing establish, by clear and convincing 

evidence, actual innocence of that felony offense or, if the person was 

sentenced to death, establish, by clear and convincing evidence, actual

innocence of the aggravating circumstance or circumstances the person 

was found guilty of committing and that is or are the basis of that 

sentence of death.

R.C. 2953.23(A)(2).

A trial court lacks authority to grant an untimely petition unless one of 

the two statutory exceptions applies. State v. Apanovitch, 155 Ohio St.3d 358, 2018-

Ohio-4744, 121 N.E.3d 351, ¶ 22.

Appellant contends that R.C. 2953.23(A)(1) applies because his “due 

process rights were curtailed significantly by the failure of his own counsel to fully 

utilize the court appointed expert in this matter.” However, the trial court could not 

entertain a petition filed after the expiration period unless both section (a) and (b) 

of R.C. 2953.23(A)(1) applied, and the record demonstrates that appellant did not 

satisfy either. 

Appellant has not advanced any argument that he was unavoidably 

prevented from the discovery of any evidence. He also has not argued that the 
United States Supreme Court has since recognized a new right that applies 

retroactively to his case. 

The record demonstrates that appellant was not unavoidably 

prevented from discovery of the facts on which he relies for postconviction relief. 

Rather, the record shows that appellant was present at the suppression hearing, at 

which his counsel stated on the record that the defense did not yet have a report 

from the defense DNA expert, but that the defense wished to proceed on the chain 

of custody issue. 

Investigator Kratsas testified about sending the wall scrapings 

evidence to DNA diagnostics. He testified that on request from defense counsel, he 

requested the evidence from the Cleveland Division of Police, received the evidence 

which was sealed in an envelope, put it in a secured locker, and then sent the

evidence to BCI. Kratsas reiterated that the evidence was sealed at all pertinent 

times: when it was received by BCI, when it was received by the Cleveland Division 

of Police, and when it was sent to the defense’s expert.

Appellant’s counsel thoroughly cross-examined Investigator Kratsas 

about the chain of custody. Indeed, appellant averred in his affidavit in support of 

his petition that he believed his attorney “made significant headway in crossexamining Kratsas and in exposing irregularities in the chain of custody process.” 

Appellant further averred that “there were certainly problems with the way the 

evidence was taken and maintained” but he decided to plead guilty notwithstanding 
the “problems” because “it was not a certainty that the motion to suppress would be 

granted.” 

Appellant further acknowledges that he had the specific evidence he 

relies on, including emails from BCI and his expert, as of the sentencing date. He 

averred that “[i]mmediately subsequent to being sentenced on June 21, 2018, I was 

handed a collection of emails by my attorney while I was being escorted off to jail.” 

On this record, appellant was not unavoidably prevented from 

discovering the facts on which his petition for postconviction relief rests under R.C. 

2953.23(A)(1)(a).

Further, appellant has also failed to demonstrate that he is entitled to 

relief under R.C. 2953.23(A)(1)(b). He contends that “if the State’s DNA evidence 

were to be excluded, * * * his actual innocence would be established since there 

would be no viable case to present against him.” The statute refers only to DNA 

testing results, not general arguments of actual innocence. Further, a claim of actual 

innocence “‘is not itself a constitutional claim,’” nor does it constitute a substantive 

ground for postconviction relief. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 

121 N.E.3d 351, at ¶ 26, quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 

122 L.Ed.2d 203 (1993); see also State v. Willis, 2016-Ohio-335, 58 N.E.3d 515, ¶ 15-

19 (6th Dist.) (actual innocence claim is not a “constitutional error at trial” under 

R.C. 2953.23(A)(1)(b)). 

In regard to R.C. 2953.23(A)(2), the DNA testing in this case was not 

done at appellant’s behest. Rather, it was the state that requested the testing. Thus, 
R.C. 2953.23(A)(2) is inapplicable. See Apanovitch at ¶ 29 (“The statutory language 

of R.C. 2953.23(A)(2) * * * is * * * circumscribed. It confers jurisdiction over a select 

class of DNA-based actual-innocence claims — only those arising from an eligible 

offender’s application for DNA testing under R.C. 2953.71 to 2953.81 or under 

former R.C. 2953.82.”). (Emphasis added.)

In light of the above, appellant’s petition for postconviction relief was 

untimely and not subject to either of the exceptions for untimely petitions under 

R.C. 2953.23(A). “[A] trial court need not issue findings of fact and conclusions of 

law when it dismisses an untimely petition.” State ex rel. Kimbrough v. Greene, 98 

Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155, ¶ 6; see also State v. Perotti, 8th 

Dist. Cuyahoga No. 89731, 2008-Ohio-1266, ¶ 9.

The trial court did not abuse its discretion by denying appellant’s 

petition for postconviction relief without a hearing and without issuing findings of 

fact and conclusions of law.

The second assignment of error is overruled.

Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to the common pleas court to carry 

this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

CORNELIUS J. O’SULLIVAN, JR., JUDGE

ANITA LASTER MAYS, P.J., and

EMANUELLA D. GROVES, J., CONCUR