[Cite as State v. Parsons, 2011-Ohio-1094.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio,
:
Plaintiff-Appellee,
:
No. 10AP-685
(C.P.C. No. 88CR-01-279)
v.
:
John L. Parsons,
:
Defendant-Appellant.
(ACCELERATED CALENDAR)
:
D E C I S I O N
Rendered on March 10, 2011
Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
appellee.
John L. Parsons, pro se.
APPEAL from the Franklin County Court of Common Pleas.
BROWN, J.
{¶1}
John L. Parsons, defendant-appellant, appeals from a judgment of the
Franklin County Court of Common Pleas in which the court denied his motion for postconviction relief.
{¶2}
On January 28, 1988, defendant was indicted on two counts of aggravated
murder, one count of arson, and three counts of unlawful possession of a dangerous
ordnance. The indictment stemmed from the shooting death of Michael Gustin on
December 13, 1987. The court severed the counts alleging aggravated murder and arson
No. 10AP-685
2
from the counts relating to the unlawful possession of a dangerous ordnance. The counts
relating to aggravated murder and arson were eventually tried to a jury, which found
appellant guilty. The court sentenced appellant to serve an imprisonment term of 30 years
to life. This court affirmed the convictions in State v. Parsons (Feb. 13, 1992), 10th Dist.
No. 91AP-84.
{¶3}
Appellant also entered a no contest plea to the counts relating to unlawful
possession of a dangerous ordnance, and the trial court found him guilty. Appellant was
sentenced to imprisonment terms of 18 months on each of the three counts. This court
affirmed the convictions in State v. Parsons (1990), 68 Ohio App.3d 323.
{¶4}
On April 16, 2010, appellant filed a delayed petition for post-conviction relief
and a motion for leave to file verified delayed petition for post-conviction relief. On May 6,
2010, appellant filed a motion instanter for judgment as a matter of law denying appellee's
motion for leave to file answer and motion to dismiss instanter. On June 21, 2010, the trial
court denied appellant's petition for post-conviction relief as being untimely filed, and
denied his May 6, 2010 motion. Appellant appeals the judgment of the trial court and
asserts the following two assignments of error:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT DENIED THE APPELLANT'S PETITION FOR POSTCONVICTION RELIEF FILED PURSUANT [TO] R.C.
§2953.23(A)(1).
[II.] APPELLANT'S CONVICTIONS UNCONSTITUTIONALLY
REST UPON DOUBLE JEOPARDY VIOLATION RIGHT NOT
TO BE TWICE PUT INTO JEOPARDY FOR THE SAME
OFFENSE.
{¶5}
We will address appellant's assignments of error together. The trial court
found appellant's petition was untimely filed. A petition for post-conviction relief under
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No. 10AP-685
R.C. 2953.21 is a collateral civil attack on a criminal judgment, not an appeal of the
judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111. "It is a means to
reach constitutional issues which would otherwise be impossible to reach because the
evidence supporting those issues is not contained in the record." State v. Murphy
(Dec. 26, 2000), 10th Dist. No. 00AP-233.
R.C. 2953.21 affords a prisoner post-
conviction relief only if the court can find that there was such a denial or infringement of
the rights of the prisoner as to render the judgment void or voidable under the Ohio or
United States Constitutions. State v. Perry (1967), 10 Ohio St.2d 175, paragraph four of
the syllabus. A post-conviction petition does not provide a petitioner a second opportunity
to litigate his or her conviction. State v. Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio3321, ¶32; Murphy.
{¶6}
Post-conviction petitions must be timely filed. Am.Sub.S.B. No. 4, which
went into effect September 21, 1995, amended R.C. 2953.21 and imposes time limits on
post-conviction petitioners. R.C. 2953.21(A)(2) provides:
Except as otherwise provided in section 2953.23 of the
Revised Code, a petition under division (A)(1) of this section
shall be filed no later than one hundred eighty 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 or, if the direct appeal involves a sentence of
death, the date on which the trial transcript is filed in the
supreme court. If no appeal is taken, except as otherwise
provided in section 2953.23 of the Revised Code, the petition
shall be filed no later than one hundred eighty days after the
expiration of the time for filing the appeal.
In an uncodified section of S.B. No. 4, the General Assembly included a more generous
limitations period for persons convicted prior to the effective date of the act. See State v.
Bird (2000), 138 Ohio App.3d 400. Section 3 of S.B. No. 4 provided that such persons
No. 10AP-685
4
shall file a petition within the time required in R.C. 2953.21(A)(2) or within one year from
the effective date of this act, whichever is later. State v. Jones, 10th Dist. No. 08AP-551,
2008-Ohio-6515, ¶7.
{¶7}
However, R.C. 2953.23(A)(1) permits a court to entertain a petition filed
after the expiration of the period prescribed in R.C. 2953.21(A) if one of the following
exceptions apply: (1) the petitioner shows that he or she was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for relief; or
(2) subsequent to the period prescribed in R.C. 2953.21(A)(2) 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. If the petitioner were able to satisfy one of those two conditions,
R.C. 2953.23(A)(1)(b) requires he or she also demonstrate that, but for the constitutional
error at trial, no reasonable fact finder would have found the petitioner guilty of the
offenses of which he or she was convicted.
{¶8}
In the present case, because appellant was convicted prior to the effective
date of the act, appellant was required to file his petition within one year of September 21,
1995. Appellant filed his petition in April 2010; therefore, it was untimely. Furthermore,
although R.C. 2953.23(A)(1) provides exceptions to the one-year limitation, appellant has
failed to meet the requirements of this section and has failed to even argue that any
exceptions apply. The facts upon which appellant bases his petition were known to or
discoverable by him at the time of the trial court's original judgments. Appellant contended
in his petition that his indictment was defective; there was insufficient evidence to convict
him; there existed ex post facto violations; his trial attorney committed fraud upon the
5
No. 10AP-685
court by failing to disclose material information with regard to his indictment and trial; and
his trial attorney provided ineffective assistance. These circumstances were all either
known to appellant or discoverable by him at the time of the judgments. Furthermore,
appellant does not claim that the United States Supreme Court recognized a new federal
or state right that applies retroactively to his situation, and his petition did not assert any
claims based upon any such rights.
{¶9}
Therefore, insomuch as appellant neither filed his petition within one year of
the effective date of S.B. No. 4 nor satisfied the first prong of R.C. 2953.23(A)(1), the
petition was not timely. Thus, as we have found the trial court did not err in denying
appellant's petition because it was untimely filed, his first and second assignments of
error are overruled.
{¶10} Accordingly, appellant's two assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
FRENCH and DORRIAN, JJ., concur.
______________________
