State Of Ohio v. Gonzales
| Decision Date | 30 September 2010 |
| Docket Number | Trial Court No. 2007CR0195,Court of Appeals No. WD-09-078 |
| Citation | 2010 Ohio 4703 |
| Parties | State of Ohio Appellee, v. Ironia Gonzales Appellant. |
| Court | Ohio Court of Appeals |
Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers and David E. Romaker, Jr., Assistant Prosecuting Attorneys, for appellee.
Ironia S. Gonzales, pro se.
DECISION AND JUDGMENT
{¶ 1} Appellant, Ironia S. Gonzales, appeals from a judgment of the Wood County Court of Common Pleas, in which the trial court denied her motion for postconviction relief.
{¶ 2} Appellant claims that she was unavoidably prevented from discovering a ten-pound discrepancy between the weight of marijuana recorded by the arresting officer and that amount recorded by the state's Bureau of Criminal Identification and Investigation ("BCI&I") chemical analyst. Appellant asserts that the difference in the amount documented calls into question whether the evidence was tampered with. Appellant contends that since she was unaware of this discrepancy, she was unable to raise a claim of prosecutorial misconduct and ineffective assistance of counsel during her appeal as of right.
{¶ 3} We conclude, however, that not only was appellant's petition for postconviction relief untimely, the exception provided for in R.C. 2953.21 does not apply. Appellant was not unavoidably prevented from discovering this discrepancy. As well, appellant failed to satisfy her initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and to demonstrate that her defense was prejudiced by counsel's ineffectiveness. Therefore, the judgment of the trial court is affirmed.
{¶ 4} On September 27, 2007, a jury found appellant guilty of trafficking in marijuana with a specification, a violation of R.C. 2925.03(A)(2) and (C)(3)(f), a felony of the second degree, and possession of marijuana in violation of R.C. 2925.11(A) and (C)(3)(f), a felony of the second degree. Appellant was sentenced to a total term of eight years in prison.
{¶ 5} On October 3, 2007, appellant appealed, raising two assignments of error. Appellant argued that the search of her vehicle and its contents was unconstitutional and that the trial court erred in not granting her motion to suppress evidence and statements resulting from the search. She also argued that her convictions were against the manifest weight of the evidence. This court disagreed, holding that probable cause existed to justify the search of the Jeep and the duffle bags located inside the Jeep's cargo area. This court also held that since appellant had not filed a transcript of her trial, it "must presume the proceedings were valid" and thus, could not find in favor of appellant's argument that her conviction was against the manifest weight of the evidence. State v. Gonzales, WD-07-060, 2009-Ohio-168, ¶ 27.
{¶ 6} On July 13, 2009, appellant filed a petition for postconviction relief in the trial court, asserting 22 claims in which she alleged violations of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Appellant claimed that her trial counsel was ineffective because he did not object to the admission of the marijuana, question the discrepancy in the weight of the marijuana recorded by the arresting officer and that amount recorded by the BCI&I analyst, or argue that the evidence had been tampered with. Appellant argued that counsel was ineffective because he failed to question the sufficiency of the evidence upon which she was convicted.
{¶ 7} On October 9, 2009, the trial court rejected appellant's petition for postconviction relief, observing that "'Petitioner does not question the crime itself, ' but that she has filed the petition to uphold the standards of the U.S. Constitution." The trial courtheld that since the trial transcript had been filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication on November 13, 2007, appellant's petition was untimely.1 According to the trial court, any petition should have been filed by May 13, 2008. The trial court also observed that since none of the exceptions set forth in R.C. 2953.23 applied, it could not consider the petition. It concluded that appellant was not unavoidably prevented from discovery of the facts at issue, and concluded that, subsequent to the filing of appellant's petition, the United States Supreme Court had not recognized a new right that applied retroactively to appellant's situation.
{¶ 8} Appellant then filed this appeal on November 25, 2009, asserting that the trial court erred in denying her petition for postconviction relief, in part, because she could not have timely asserted a claim for ineffective assistance of counsel. Appellant complains that since her appellate counsel, who was also her trial counsel, refused to turn the file over to her until she had exhausted her appeals, she was unavoidably prevented from discovery. Appellant argues that this evidence is exculpatory and also insists that her due process rights were violated when the prosecutor knowingly and intentionally failed to disclose this evidence to her.
{¶ 9} In her first assignment of error, appellant maintains that:
{¶ 10} "The court committed error when declining the appellant's post conviction petition under R.C. Law 2953.21 and 2953.23."
{¶ 11} Appellant argues that the trial court abused its discretion in declining her petition for postconviction relief when it: (A) denied her an evidentiary hearing; (B) concluded that she was not unavoidably prevented from discovery; and (C) concluded that trial counsel was not ineffective.
{¶ 12} We disagree.
{¶ 13} A petition for postconviction relief under R.C. 2953.21 is a collateral civil attack on a criminal judgment, not an appeal of the judgment. State v. Steffen (1994), 70 Ohio St.3d 399, 410. See State v. Calhoun (1999), 86 Ohio St.3d 279, 281. See, also, State v. Macias, 6th Dist. No. L-01-1391, 2003-Ohio-684, ¶ 10; State v. Davis, 7th Dist. No. 08 MA 174, 2009-Ohio-4634, ¶12. "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, discretionary appeal not allowed (2001), 92 Ohio St.3d 1441. R.C. 2953.21 et seq., affords a prisoner postconviction 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 Constitution or the United States Constitution." State v. Perry (1967), 10 Ohio St.2d 175, paragraph four of the syllabus. See State v. McKnight, 4th Dist. No. 07CA665, 2008-Ohio-2435, ¶ 16, citing R.C. 2953.21(A)(1); State v. Calhoun (1999), 86 Ohio St.3d 279, 283. A postconviction petition does not provide a petitioner a second opportunity to litigate the conviction. State v. Hessler, 10th Dist. No. 01 AP-1011, 2002-Ohio-3321, ¶ 32. See State v. Jackson (1980), 64 Ohio St.2d 107.
{¶ 14} The denial of a postconviction petition will not be overturned on appeal absent a finding of abuse of discretion. State v. Williams, 165 Ohio App.3d 594, 2006-Ohio-617, ¶ 20. An abuse of discretion connotes more than a mere error of law or judgment, instead requiring a finding that the trial court's decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 15} Appellant acknowledges her petition was untimely filed. The trial court lacks jurisdiction to consider an untimely petition for postconviction relief unless the untimeliness is excused under R.C. 2953.23(A)(1)(a). State v. West, 2d Dist. No. 08CA0102, 2009-Ohio-7057, ¶ 7. Pursuant to R.C. 2953.23(A)(1)(a), a defendant may file an untimely petition for postconviction relief (1) if she was unavoidably prevented from discovering the facts upon which she relies to present her claim, or (2) if the United States Supreme Court recognizes a new right that applies retroactively to her situation. Id. If one of these conditions is met, the petitioner must then also show by clear and convincing evidence that, if not for the constitutional error from which she suffered, no reasonable factfinder would have found her guilty. R.C. 2953.23(A)(1)(b).
{¶ 16} Although she concedes her petition was untimely filed, appellant argues that the trial court had jurisdiction to consider her petition. Relying on R.C. 2953.23(A)(1)(a), appellant asserts she was unavoidably prevented from discovering the discrepancy between the amounts of marijuana recorded by the arresting officer and the state's BCI&I agent, thus calling into question the sufficiency of the evidence upon which she was convicted. Appellant argues that the state did not meet its burden for establishing a proper chain of custody and could not show that it was reasonably certain that substitution, alteration, or tampering did not occur. She also questions the credibility of the officer involved and contends that the state was aware of this discrepancy and its exculpatory potential but deliberately refused to disclose it. Appellant also claims that her trial counsel was ineffective when he failed to inquire into the discrepancy. Thus, appellant asserts that the outcome of the trial could have been very different.
{¶ 17} Appellant contends she is entitled to an evidentiary hearing in order to demonstrate evidence of ineffective assistance of counsel, prosecutorial misconduct, and tampering with evidence, which would in turn cast the outcome of the trial in doubt. A. Evidentiary Hearing
{¶ 18} Under R.C. 2953.21, a petitioner seeking postconviction relief is not automatically entitled to an evidentiary hearing. State v. Calhoun (1999), 86 Ohio St.3d 279, 282. The Supreme Court of Ohio has held that proper bases for dismissing a petition for...
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