COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA Nos. 73784, 73785, 73786 and 73787 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION SANTURA FREEMAN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : DECEMBER 10, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case Nos. CR-284175 [73784], : CR-284259 [73785], : CR-309931 [73786] and CR-323381 [73787] : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 SANTURA FREEMAN, PRO SE Inmate No. 311-942 P.O. Box 57 M.C.I. Marion, OH 43301-0057 -2- JOHN T. PATTON, J.: In four separate criminal cases dating back to 1992, petitioner Santura Freeman pleaded guilty to attempted aggravated arson (CR 284175 December 7, 1992) , attempted robbery (CR 284259 December 9, 1992), theft (CR 309931 September 5, 1995) and felonious assault (CR 323381 September 6, 1995). Petitioner did not appeal from any of the convictions. On September 12, 1997, petitioner filed an identical motion to vacate all four of his sentences. He claimed there were defects in the indictments, his attorneys were ineffective, and the court should have sentenced him under the sentencing provisions of Senate Bill 2. The court denied postconviction relief, finding (1) res judicata applied to bar any claim of defect in the indictment, (2) petitioner had failed to demonstrate a genuine issue of ineffective assistance of counsel, and (3) that Senate Bill 2 had no application because it could not be applied retroactively. We dismiss the appeal because the petition was not timely filed. R.C. 2953.21(A)(2) states that if no appeal is taken from a sentence, a petitioner must file the petition for postconviction relief no later than one hundred eighty days after the expiration of the time for filing the appeal. However, Senate Bill 4, which became effective on September 21, 1995, provides at Section 3: A person who seeks postconviction relief pursuant to sections 2953.21 through 2953.23 of the Revised Code with respect to a case in which sentence was imposed prior to the effective date of this act or to an adjudication as a delinquent child and order -3- of disposition issued prior to the effective date of this act shall file a petition within the time required in division (A)(2) of section 2953.21 of the Revised Code, as amended by this act, or within one year from the effective date of this act, whichever is later. Amended Substitute Senate Bill No. 269 repealed and amended R.C. 2953.21 as of July 1, 1996, but did not repeal Section 3 of S.B. 4. Because the court sentenced petitioner on all four separate cases prior to September 21, 1995, his postconviction petition filed September 12, 1997 was not within the one-year time period, so the petitions for postconviction relief were not timely. R.C. 2953.23 states that the court may not entertain a petition filed after the expiration of the period prescribed in [R.C. 2953.21(A)] unless (1) the petitioner shows either that he was unavoidably prevented from discovering the facts upon which he relies in the petition, or that the United State Supreme Court has, since his last petition, recognized a new federal or state right that applies retroactively to the petitioner; and (2) the petitioner shows by clear and convincing evidence that a reasonable factfinder would not have found him guilty (or, if applicable, found him eligible for the death penalty) but for constitutional error at trial. Petitioner did not make the showing required by R.C. 2953.23 -- that he had been unavoidably prevented from discovering evidence forming the basis for the petition and that clear and convincing evidence exists to show that but for the constitutional error he -4- would not have been found guilty at trial. While the claim of ineffective assistance of counsel implicates a constitutional right under the Sixth Amendment, petitioner still had the obligation to show that he was unavoidably prevented from discovering the existence of the claim in a timely fashion. See State v. Arnold (May 1, 1998), Greene App. Nos. 90-CR-258 and 97-CA-108, unre- ported. His petition does not make the necessary showing. Accordingly, we find the court should have dismissed the petitions for postconviction relief as being untimely. See State v. Czaplicki (May 29, 1998), Montgomery App. No. 16598, unreported; State v. Hilton (Oct. 29, 1997), Summit App. No. 18447, unreported. For this reason, we overrule the assigned errors. Judgment affirmed. -5- 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 issue out of this court direct ing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, A.J. JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .