[Cite as State v. Allen, 2011-Ohio-3843.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 96311



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                              DAVID JIMMIE ALLEN
                                                       DEFENDANT-APPELLANT


                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-489462

                 BEFORE:             Blackmon, P.J., Rocco, J., and E. Gallagher, J.

                RELEASED AND JOURNALIZED:                      August 4, 2011
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APPELLANT

David Jimmie Allen, Pro Se
Inmate No. 542-502
Lorain Correctional Institution
2075 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Katherine Mullin
Aaron Brockler
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant David Jimmie Allen (“Allen”) appeals pro se the trial

court’s denial of his untimely petition for post-conviction relief and assigns

the following three errors for our review:

      “I.    The trial court erred by denying without an

      evidentiary hearing appellant’s postconviction petition

      alleging ineffective assistance of counsel when appellant

      had    submitted       evidentiary     documents     containing
                                 3
sufficient   operative   facts    to   demonstrate   ineffective

assistance of counsel as well as proof that appellant was

unavoidably prevented from discovering the facts in

which he must rely to make a timely petition for

postconviction relief pursuant to R.C. 2953.21 180 day time

limit.   The trial court thereby violated appellant’s

statutory rights granted by R.C. 2953.23; and deprived him

of due process of law and effective assistance of counsel in

violation of Article I, Section 10 and 16 of the Ohio

Constitution and the Sixth and Fourteenth Amendments

to the United States Constitution.”

“II. When a trial court denies a defendant’s motion for
mistrial and convicts a defendant after undeniable proof
of the states alleged negligence in providing accurate
Criminal Rule 16 discovery renders a defendant’s jury
waiver invalid therefore no valid conviction can be
obtained from this error, in violation of defendant’s right
to due process of law under the Fourteenth Amendment to
the United States Constitution and Article 1, Section 14 of
the Ohio Constitution.”

“III. When trial counsel doesn’t object to a trier of fact
verdict finding defendant not guilty of the indicted charge
and guilty of a lesser, when there was no sufficient
evidence in the record supporting such a conclusion a
defendant is denied his constitutional right to effective
assistance of counsel in violation of his rights under the
Sixth Amendment to the United States Constitution and
Article 1, Section 10 of the Ohio Constitution.”
                                         4
          {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

                                          Facts

          {¶ 3} In February 2008, Allen was convicted of murder with one-and

three-year firearm specifications.       The trial court sentenced Allen to a

15-to-life prison sentence. Allen appealed his conviction, which this court

upheld in State v. Allen, Cuyahoga App. No. 91107, 2009-Ohio-2572.1

          {¶ 4} On November 29, 2010, Allen filed a petition for postconviction

relief and requested an evidentiary hearing. He argued that his trial counsel

was ineffective for failing to use a witness statement collected by a private

detective, failed to object to the trial court’s finding him guilty of the lesser

included offense of murder, and the trial court erred by denying his motion

for a mistrial when it was clear the state conducted negligent discovery. The

trial court denied Allen’s petition without holding a hearing.

          Untimely Petition for Postconviction Relief

          {¶ 5} Before reviewing Allen’s assigned errors, we address the trial

court’s jurisdiction to review an untimely filed petition of postconviction

relief.




       For a detailed factual account of the events leading to Allen’s conviction, see
          1

our decision from Allen’s direct appeal.
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         {¶ 6} R.C. 2953.21(A)(2) provides that if a direct appeal is taken, a

petition for postconviction relief shall be filed no later than 180 days after the

filing of the trial transcript in the court of appeals.          Here, the trial

transcript was filed in the court of appeals on April 15, 2008. Therefore, his

petition for postconviction relief needed to be filed by October 12, 2008.

Allen waited until November 29, 2010, to file his petition. Because he filed

the petition more than two years after the required deadline, it was untimely

filed.

         {¶ 7} A petition challenging a conviction filed after the 180-day

requirement is untimely and the trial court may not entertain it unless one of

the enumerated exceptions apply.       See R.C. 2953.23(A); State v. Houston,

Cuyahoga App. No. 95994, 2011-Ohio-2798; State v. Knuckles, Cuyahoga App.

No. 89361, 2008-Ohio-2031; State v. Perotti, Cuyahoga App. No. 89731,

2008-Ohio-1266.      Here, the only relevant exception, R.C. 2953.23(A)(1),

allows an untimely petition if the following two prongs 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.
                                      6
      “(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

      * * *.”

      {¶ 8} We conclude that Allen failed to prove he was unavoidably

prevented from discovering the facts upon which his petition was based.

While he argues his defense counsel refused to give him his file, which

contained the investigator’s report, the record shows he was sent the file in

July 2009. Thus, the delay in receiving the investigator’s report does not

excuse his failure to file his petition until November 2010, more than a year

after receiving the file. Accordingly, Allen’s assigned errors are overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.
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PATRICIA ANN BLACKMON, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR
