State v. McDaniel

[Cite as State v. McDaniel, 

.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                        MEIGS COUNTY


STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         : CASE NO. 22CA9

        v.                                          :

NATHAN MCDANIEL,                                    : DECISION AND JUDGMENT ENTRY

        Defendant-Appellant.                        :

_________________________________________________________________

                                               APPEARANCES:

Christopher Bazeley, Cincinnati, Ohio, for appellant1.

James K. Stanley, Meigs County Prosecuting Attorney, Pomeroy, Ohio,
for appellee.
_________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-24-23
PER CURIAM.

        {¶1}    This is an appeal from a Meigs County Common Pleas Court

judgment that overruled a petition for postconviction relief filed

by Nathan McDaniel, defendant below and appellant herein.

Appellant assigns two errors for review:

                FIRST ASSIGNMENT OF ERROR:

                “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
                DENIED MCDANIEL’S POST CONVICTION RELIEF
                PETITION WITHOUT A HEARING.”

        1
        Different counsel represented appellant during the trial
court proceedings.
                                                                       2
MEIGS,   22CA9

           SECOND ASSIGNMENT OF ERROR:

           “THE TRIAL COURT ERRED WHEN IT DENIED
           MCDANIEL’S PETITION WITHOUT FILING A FINDINGS
           OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY
           R.C. 2953.21(D).”

    {¶2}   In 2012, a jury found appellant guilty of (1) felonious

assault, in violation of R.C. 2903.11(A)(2), and (2) kidnapping, in

violation of R.C. 2905.01(A)(4).     The trial court sentenced

appellant to serve an aggregate 18-year prison sentence and pay

restitution.     Appellant appealed the judgment of conviction and

sentence and this court reversed the restitution award.     State v.

McDaniel, 4th Dist. Meigs No. 12CA6, 

.

    {¶3}   On August 26, 2020, appellant filed a motion for

“dismissal” “due to alleged perjury committed by witnesses, fraud

committed by the prosecuting attorney for permitting perjury,” and

the trial court “prejudicially admitted the perjured testimony.”

The court denied the motion.     On September 29, 2020, appellant

again moved the court to dismiss for the same reasons raised in his

August 26, 2020 motion.

    {¶4}   On February 11, 2021, appellant filed a pro se R.C.

2953.21 postconviction relief petition.     On October 7, 2021, the

trial court denied the petition:

    The Defendant, Nathan McDaniel, has filed a number of posttrial Motions in this case. The most recent Motion was a
    Petition to Vacate or Set Aside Judgment and to Appoint
                                                                       3
MEIGS,   22CA9

     Counsel.
     The court has appointed counsel.       The most recently
     appointed attorney … has reviewed the record and finds
     that there is no basis for the Defendant’s request.
     Likewise, this Court has reviewed the record and the
     Defendant’s arguments.
     The Court finds no basis for the remedies sought by the
     Defendant.
     Therefore, the Defendant’s Petition to Vacate or Set Aside
     Judgment is hereby DENIED.


     {¶5}   On November 1, 2021, appellant filed a pro se “Motion to

Vacate Void Sentence.”   On August 23, 2022, appellant filed another

pro se “Motion for Leave to File Petition to Vacate or Set Aside

Judgment of Conviction Pursuant to R.C. 2953.23" and “Motion for

Post Conviction Relief Pursuant to R.C. 2953.21.”   On August 26,

2022, the trial court again denied appellant’s motions:

     On March 17, 2021, the Court appointed … to review the
     Defendant’s Post Conviction requests.     Defense counsel
     found no basis for Post-Conviction Relief.      Since the
     Defense Attorney’s notice of withdraw, the Defendant and
     his family have continued to file Motions, letters and
     emails.

     The Court has reviewed all documents filed by the Defendant
     in the above-mentioned case and finds that no basis for
     the remedies sought by the Defendant.       Therefore, all
     Motions are hereby DENIED.


This appeal followed.2


     2
       After filing his September 1, 2022 notice of appeal,
appellant filed a pro se “Motion to Amend and or Include to Post-Conviction Petition.” On October 26, 2022, the trial court denied
all pending postconviction motions, including the September 1, 2022
                                                                        4
MEIGS,   22CA9

                                   I

     {¶6}   In his first assignment of error, appellant asserts that

the trial court abused its discretion when it denied his August 23,

2022 postconviction relief petition without conducting a hearing.

     {¶7}   Appellant contends that a decision to deny a

postconviction petition without a hearing should be reviewed under

the abuse of discretion standard, citing State v. Taylor, 10th

Dist. Franklin No. 14AP-166, 

.3    In general, an

“abuse of discretion” implies that a court’s attitude is

unreasonable, arbitrary, or unconscionable.    Jayjohn, id.; State v.

Herring, 

, 

 (2002); State v.

Adams, 

, 

 (1980).     In reviewing for

an abuse of discretion, an appellate court must not substitute its



motion. These motions are not the subject of this appeal.
     3
       Appellee, however, argues that appellate courts should use a
de novo standard of review, citing State v. McDougald, 4th Dist.
Scioto No. 09CA3278, 

 (McDougald I), and State v.
Collins, 4th Dist. Athens No. 06CA40, 

.
Although McDougald I used a de novo standard of review, McDougald I
also acknowledged In re B.C.S., 4th Dist. Washington No. 07CA60,

, which adopted a “mixed” standard of review.
Further, McDougald II, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-
5080, used the abuse of discretion standard. In more recent cases,
this court continues to use the abuse of discretion standard of
review. See State v. Carver, 

, 

 (4th
Dist.), ¶ 11-12, State v. Jayjohn, 4th Dist. Vinton No. 20CA722,

, ¶ 9, State v. Osborn, 4th Dist. Adams No. 18CA1064,

; see also State v. Gondor, 

,

, 

.
                                                                        5
MEIGS,    22CA9

judgment for the trial court’s judgment.     State ex rel. Duncan v.

Chippewa Twp. Trustees, 

, 

(1995).

    {¶8}   R.C. 2953.21 governs a petition for postconviction

relief.    Any person convicted of a criminal offense who claims a

denial or infringement of rights to such a degree as to render a

judgment void or voidable may file a petition for postconviction

relief.    R.C. 2953.21(A)(1)(a)(I).   “[A] postconviction proceeding

is not an appeal of a criminal conviction but rather, is a

collateral, civil attack on a criminal judgment.”     State v. Broom,

, 

, 

, citing

State v. Steffen, 

, 

 (1994);

accord State v. Betts, 4th Dist. Vinton No. 18CA710, 2018-Ohio-

2720, ¶ 11, State v. Brown, 4th Dist. Scioto No. 20CA3917, 2022-

Ohio-519, ¶ 6.

    {¶9}   Postconviction relief is not a constitutional right;

instead, it is a narrow remedy that gives the petitioner no more

rights than those granted by statute.     State v. Smith, 4th Dist.

Highland No. 19CA16, 

; Carver, supra, 

,

, ¶ 11; Brown, supra, at ¶ 7.     Postconviction relief

is a means to resolve constitutional claims that cannot be

addressed on direct appeal because the evidence supporting the
                                                                       6
MEIGS,   22CA9

claims is not contained in the record.   

.    This means

that “any right to postconviction relief must arise from the

statutory scheme enacted by the General Assembly.”   State v.

Apanovitch, 

, 

, 

.

      {¶10} R.C. 2953.21(A)(2) provides that a petitioner must file a

postconviction relief petition no later than 365 days after the

date on which the trial transcript was filed in the court of

appeals in the direct appeal of the judgment of conviction.     In the

case sub judice, it appears that appellant filed his petition nine

years after the filing of the transcript in his direct appeal.

Thus, the lapse of time should bar consideration of appellant’s

latest postconviction relief petition.   See State v. Rinehart, 4th

Dist. Ross No. 17CA3606, 

 (petition filed 10

years after expiration of 365-day period untimely); State v. Heid,

4th Dist. Scioto No. 15CA3710, 

 (petition filed

seven years after expiration of time for filing an appeal

untimely); State v. Mitchell, 

, 

, ¶ 20

(4th Dist.) (petition filed four years after expiration of 365-day

period untimely).   Although the trial court did not address

timeliness, we believe appellant’s motion is untimely.     Moreover,

when a defendant files an untimely petition or a successive
                                                                     7
MEIGS,   22CA9

petition R.C. 2953.23(A) prevents trial courts from considering the

petition unless both of the following apply: (1) petitioner shows

he or she “was unavoidably prevented from discovery of the facts

upon which the petitioner must rely to present the claim for

relief,” or “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;” and (2) “[t]he petitioner shows by clear and

convincing evidence that, but for constitutional error at trial, no

reasonable factfinder would have found the petitioner guilty.”

R.C. 2953.23(A)(1)(a) and (b).4

     {¶11} “A defendant is ‘unavoidably prevented’ from the

discovery of facts if he had no knowledge of the existence of those

facts and could not have, in the exercise of reasonable diligence,

learned of their existence within the time specified for filing his

petition for postconviction relief.”   State v. Cunningham, 

, 

 (3d Dist.), citing State v.

Holnapy, 11th Dist. Lake No. 2013-L-002, 

, and

State v. Ruark, 10th Dist. Franklin No. 15AP-142, 

, ¶



     4
        Another exception, inapplicable here, allows a court to
entertain an untimely, second, or successive petition if DNA
testing results “establish, by clear and convincing evidence” the
petitioner’s “actual innocence.”   R.C. 2953.23(A)(2).
                                                                       8
MEIGS,    22CA9

11; see also Brown, 4th Dist. Scioto No. 20CA3917, 

.    Moreover, “[t]he ‘facts’ contemplated by this provision

are the historical facts of the case, which occurred up to and

including the time of conviction.”    State v. Williamitis, 2d Dist.

Montgomery No. 21321, 

.

     {¶12} A trial court lacks jurisdiction to consider an untimely

or a successive petition if the petitioner fails to satisfy R.C.

2953.23(A)(1)(a) and (b).    State v. Parker, 

,

, 

, ¶ 19.   Furthermore, whether a

court possesses jurisdiction to entertain an untimely or a

successive petition is a question of law that appellate courts

review independently and without deference to the trial court.

Apanovitch, 

, 

, 

; Brown at ¶ 10.

     {¶13} In the case sub judice, it does not appear that appellant

demonstrated he has been unavoidably prevented from the discovery

of facts upon which he relied to present the claim, or that, after

the time period in R.C. 2953.21(A)(2) expired, the United States

Supreme Court recognized a new federal or state right that applies

retroactively to people in petitioner’s situation.    Appellant’s

August 23, 2022 pro se postconviction relief petition argued that

(1) the state presented false evidence and testimony that
                                                                      9
MEIGS,   22CA9

exaggerated the victim’s injuries, and (2) the trial court lacked

subject matter jurisdiction to convict appellant of kidnapping due

to a defect in the indictment.

     {¶14} Appellant contends that the indictment is invalid because

it listed the statute for kidnapping as R.C. 2911.21, rather than

R.C. 2905.11.    Although appellant states that appellee filed a

motion on March 19, 2012 to amend the indictment to change the

statutory citation, the record does not contain an entry that

disposed of the motion.    Further, appellant points out that the

judgment entry that memorialized the jury’s finding of guilt

incorrectly cites R.C. 2911.12, rather than R.C. 2905.11.

Appellant therefore contends that he has raised a substantive

ground for relief that warrants a hearing.

     {¶15} We recognize that the state’s motion to amend asked the

court to amend count two, “correctly titled Kidnapping and contains

the proper language, incorrectly lists the Ohio Revised Code

Section as 2911.21(A)(1) and should be amended to Ohio Revised Code

Section 2905.01(A)(1).”    The trial court’s March 27, 2012 summary

of trial proceedings notes that, on the first day of the jury

trial, the state made a motion at 10:07:08 A.M., “to amend

indictment count two” and reflects at 10:08:10 A.M., “so amended.”

While no corresponding entry appears in the record, appellant did
                                                                     10
MEIGS,   22CA9

not explain why he did not raise the defect in the indictment in

his direct appeal.   Moreover, appellant did not explain how this

scriveners error prejudiced him.   Furthermore, the only “new”

evidence appellant cites in his postconviction relief petition

consists of allegations that concern phone records that, he

concedes, trial counsel possessed before trial.   Appellant does not

explain how he or counsel could not have obtained this evidence at

the time he filed his direct appeal.   Consequently, appellant did

not establish that the trial court could properly address the

merits of his untimely and successive postconviction relief

petition.

      {¶16} Moreover, even if it could be argued that appellant’s

postconviction petition is timely or is not successive, we also

believe that the doctrine of res judicata barred consideration of

his arguments.   Res judicata bars appellant from raising claims

that he could have raised in his direct appeal.   “‘[R]es judicata

applies to proceedings involving postconviction relief.’”     State v.

Shaffer, 4th Dist. Lawrence No. 14CA15, 

,

quoting State v. Burton, 4th Dist. Gallia No. 13CA12, 2014-Ohio-

2549, ¶ 17, citing State v. Szefcyk, 

, 

 (1996); Mitchell, 

, 

, at ¶

28.   Under the doctrine of res judicata, “a final judgment of
                                                                      11
MEIGS,     22CA9

conviction bars a convicted defendant who was represented by

counsel from raising and litigating in any proceeding except an

appeal from that judgment, any defense or claimed lack of due

process that was raised or could have been raised by the defendant

at the trial, which resulted in that judgment of conviction, or on

an appeal from that judgment.”      State v. Perry, 

,

 (1967), paragraph nine of the syllabus; see also

Mitchell, 

      As noted above, appellant filed a direct appeal.   In

that appeal, this court affirmed, in part, and reversed, in part,

and remanded the case for further proceedings related to the

restitution order.      See McDaniel, 4th Dist. Meigs No. 12CA6, 2013-

Ohio-4003.    On direct appeal, appellant could have raised issues

concerning the clerical error, the victim’s injuries and the phone

records.

     {¶17} Therefore, we believe that res judicata bars appellant

from raising these issues in his postconviction relief petition.

Accordingly, we overrule appellant’s first assignment of error.

                                    II

     {¶18} In his second assignment of error, appellant asserts that

the trial court erred when it denied McDaniel’s petition without

filing findings of fact and conclusions of law.     Appellant contends

that because R.C. 2953.21(D) requires a trial court to make
                                                                         12
MEIGS,    22CA9

findings of fact and conclusions of law if it denies a

postconviction relief petition, and because the court did not

consider the petition’s timeliness but instead considered the

petition on its merits, it must comply with R.C. 2953.21(D) and

issue findings of fact and conclusion of law.

     {¶19} In McDougald, supra, 4th Dist. Scioto No. 09CA3278, 2009-

Ohio-4417, this court wrote “[g]enerally, when a trial court denies

a motion for post-conviction relief without conducting an

evidentiary hearing, it must file findings of fact and conclusions

of law.    Failure to do so results in the lack of a final appealable

order.    Here, the court’s judgment does not satisfy that

requirement.      However, findings of fact and conclusions of law are

unnecessary when dismissing untimely or successive petitions.

State ex rel. Bunting v. Haas, 

, 

,

, at ¶ 11.”      McDougald at fn. 3.   McDougald further

noted that, although we could not decipher the grounds on which the

trial court based its “overruling” of the petition, because the

petition was untimely no need existed for findings of fact and

conclusions of law.      

     {¶20} In the case sub judice, the trial court denied

appellant’s petition and noted that “no basis for the remedies

sought by the Defendant.”      Here, because appellant’s petition is
                                                                     13
MEIGS,   22CA9

untimely and successive, findings of fact and conclusions of law

are not required.    Furthermore, appellant raises no issues that he

could not have raised during his direct appeal.

     {¶21} Recently, we reminded trial courts that when an appellant

did not establish that any exception applies, a court cannot

entertain a second postconviction petition and lacks jurisdiction

to consider the petition.    Brown, 4th Dist. Scioto No. 20CA3917,

.    As in Brown, in the case at bar the trial

court “technically erred” by summarily overruling appellant’s

petition rather than issuing a dismissal for lack of jurisdiction.

 citing State v. McManaway, 4th Dist. Hocking No. 16CA8, 2016-

Ohio-7470, ¶ 16.    Thus, under App.R. 12(A)(1)(a), we modify the

trial court’s judgment to reflect the dismissal of appellant’s

postconviction petition.    

 see also State v. Daboni, 4th Dist.

Meigs No. 20CA10, 

; McManaway, supra, at ¶ 19.

     {¶22} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment as modified.

                                JUDGMENT AFFIRMED AS MODIFIED.




                            JUDGMENT ENTRY
MEIGS,   22CA9


                                                                    14

     It is ordered that the judgment be affirmed as modified.
Appellee shall recover of appellant the costs herein taxed.

    The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court
directing the Meigs County Common Pleas Court to carry this
judgment into execution.

     A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

     Smith, P.J., Abele, J. & Wilkin, J.: Concur in Judgment &
Opinion

                              For the Court



                              BY:__________________________________
                                 Jason P. Smith, Presiding Judge




    BY:__________________________________
                                 Peter B. Abele, Judge



                              BY:__________________________________
                                 Kristy S. Wilkin, Judge




                         NOTICE TO COUNSEL

     Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.