State v. Zeigler

[Cite as State v. Zeigler, 

.]




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



STATE OF OHIO,                                :      APPEAL NO. C-200212
                                                     TRIAL NO. B-1500506
        Respondent-Appellee,                  :

  vs.                                         :         O P I N I O N.
SEAN ZEIGLER,                                 :

      Petitioner-Appellant.                   :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed as Modified

Date of Judgment Entry on Appeal: October 22, 2021




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Respondent-Appellee,

Sean Zeigler, pro se.
                  OHIO FIRST DISTRICT COURT OF APPEALS



BOCK, Judge.

       {¶1}   Petitioner-appellant Sean Zeigler appeals the Hamilton County

Common Pleas Court’s judgment denying his petition under R.C. 2953.21 et seq. for

postconviction relief. Upon our determination that the trial court had no jurisdiction

to entertain the petition, we affirm the judgment as modified to dismiss the petition.

       {¶2}   In 2016, Zeigler was convicted of aggravated burglary, rape, felonious

assault, and tampering with evidence in connection with sexually assaulting J.R. We

affirmed those convictions in the direct appeal. State v. Zeigler, 

, 

, delayed appeal denied, 

, 

, 

.

       {¶3}   In December 2018, Zeigler filed with the trial court a postconviction

petition, along with a separate motion seeking leave to file the petition out of time. In

this appeal, Zeigler presents two assignments of error that fairly may be read

together to challenge the denial of the petition without an evidentiary hearing. We

find no merit to that challenge.

                          The Postconviction Petition
       {¶4}   In his petition, Zeigler sought relief from his convictions on the ground

that he had been denied the effective assistance of counsel at trial. He asserted that

his trial counsel should have investigated and used at trial four inmate-to-inmate

letters sent to him by J.R.’s boyfriend, Ramon Lear. Lear sent the letters while both

men were confined in the Hamilton County Justice Center awaiting trial—Lear for

shooting at Zeigler and Zeigler’s girlfriend, and Zeigler for raping J.R. three days

later. Zeigler argued that trial counsel should have used the letters to impeach Lear

because after the defense had put Lear on the stand at trial, he denied writing the

letters. Zeigler also argued that the letters were exculpatory because Lear stated in

the letters that he did not want to see Zeigler go to jail for something that did not

happen and because of the “scheme” revealed in the letters: Lear proposed that


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                   OHIO FIRST DISTRICT COURT OF APPEALS



Zeigler dissuade his girlfriend from testifying against Lear for the shooting, in

exchange for J.R. telling law enforcement that she had fabricated the rape allegations

against Zeigler to help Lear get out of jail.

       {¶5}     Zeigler further asserted that his trial counsel should have investigated,

and should have presented at the hearing on his motion to suppress biological

evidence taken from him at the police station, witnesses who had information

concerning his detention by the police. Zeigler supported that claim with affidavits

provided by his brother and grandmother, who averred that the police had

transported Zeigler to the station and, after he had asked to leave, detained him for

interrogation and to collect biological evidence, despite the fact that he was not

under arrest.

       {¶6}     Zeigler also asserted that his trial counsel should have investigated and

presented testimony by Vincent Hargrove, who had been confined with Lear in the

Hamilton County Justice Center. That claim was supported by Hargrove’s affidavit,

in which Hargrove stated that Lear had told him of his plan to convince Zeigler, with

a “false” rape accusation, to dissuade his girlfriend from testifying against Lear about

the shooting.

       {¶7}     Zeigler claimed that he had been unavoidably prevented from

discovering the facts on which his postconviction claims depended because trial

counsel had ignored his requests for Lear’s letters until Zeigler filed a grievance

against counsel with the Cincinnati Bar Association. The unavoidable-prevention

claim was supported by Zeigler’s own affidavit, in which he asserted that he had

given his trial counsel the letters, but counsel, despite stating that the letters

confirmed their theory of defense, had not used them at trial. The unavoidable-

prevention claim was also supported by copies of correspondence between Zeigler

and appellate counsel, the Cincinnati Bar Association, and the Ohio Public Defender,

concerning the alleged deficiencies in his trial counsel’s performance.


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                  OHIO FIRST DISTRICT COURT OF APPEALS



                  No Jurisdiction to Entertain the Petition
       {¶8}   Zeigler filed his postconviction petition well after the time prescribed

by R.C. 2953.21(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.

The petition must show either that the petitioner was unavoidably prevented from

timely 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 Supreme Court since the time for filing the

petition had expired. 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 the offense of which the

petitioner was convicted ….” R.C. 2953.23(A)(1)(b). If the petitioner does not

satisfy those jurisdictional requirements, the petition is subject to dismissal without

a hearing. See R.C. 2953.21(D) and (F) and 2953.23(A).

       {¶9}   Zeigler asserted in his motion that his trial counsel had been

constitutionally ineffective in failing to investigate and use at trial allegedly

exculpatory and impeachment evidence contained in Lear’s letters. With respect to

Lear’s letters, the petition established unavoidable prevention. But Zeigler failed to

demonstrate that, but for that alleged constitutional violation, no reasonable

factfinder would have found him guilty. The letters were not, as Zeigler insisted,

exculpatory. They demonstrated nothing more than Lear’s proposal to Zeigler of a

mutually beneficial agreement, under which each man would persuade his girlfriend

to not cooperate in the prosecution of the other man.

       {¶10} Zeigler failed to demonstrate that he had been unavoidably prevented
from timely securing Hargrove’s affidavit. Neither the record on appeal nor the

petition, with its supporting evidence, suggests that trial counsel had even been

aware of Hargrove or explains how Zeigler later came upon Hargrove’s evidence. And


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                   OHIO FIRST DISTRICT COURT OF APPEALS



Zeigler effectively concedes in his brief that that evidence could not have been

discovered before trial, because Hargrove was not then a known witness.

         {¶11} Nor did Zeigler demonstrate that he had been unavoidably prevented
from timely discovering the evidence contained in the affidavits provided by his

brother and grandmother. Those affidavits essentially corroborated Zeigler’s affidavit

concerning the substance of his telephone conversations with the affiants after he

had been detained by police. And both affiants had been present and poised to testify

at the pretrial hearing on Zeigler’s motion to suppress the evidence seized during

that detention.

                                       We Affirm
         {¶12} Zeigler’s late postconviction petition did not satisfy R.C. 2953.23’s
jurisdictional standards. We, therefore, hold that the trial court properly declined to

conduct a hearing or entertain the petition. And we overrule his assignments of

error.

         {¶13} Because the trial court had no jurisdiction to entertain the petition, the
petition was subject to dismissal without an evidentiary hearing. See R.C. 2953.21(D)

and 2953.23(A). We, therefore, modify the court’s judgment denying the petition to

reflect its dismissal. See App.R. 12(A)(1)(a). We affirm the judgment as modified.

                                                        Judgment affirmed as modified.

MYERS, P.J., and CROUSE, J., concur.



Please note:

         The court has recorded its own entry on the date of the release of this opinion.




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