COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 83479 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY : vs. : and : : OPINION DONALD R. WILLIAMS : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: June 3, 2004 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CR-315917 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: ______________________ APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor SHERRY F. McCREARY, Assistant 1200 Ontario Street, 9th Floor Cleveland, Ohio 44113 For Defendant-Appellant: PAUL MANCINO, JR. 75 Public Square, Suite 1016 Cleveland, Ohio 44113-2098 DONALD RAY WILLIAMS, pro se Inmate No. 313-806 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901 -2- COLLEEN CONWAY COONEY, J.: Defendant-appellant, Donald R. Williams ("Williams"), appeals the judgment of the common pleas court dismissing his petition for postconviction relief without an evidentiary hearing. Finding no merit to the appeal, we affirm. In 1994, Williams was indicted for one count of aggravated murder, with a firearm specification and two aggravated felony specifications, and two counts of having a weapon while under disability, both with a firearm specification. A jury found him guilty of murder with the firearm specification and both counts of having a weapon while under disability. This court affirmed his convictions in State v. Williams (Oct. 31, 1996), Cuyahoga App. 69936. The Ohio Supreme Court denied leave to appeal. On September 24, 1996, Williams filed a postconviction petition pursuant to R.C. 2953.21. The trial court summarily dismissed his petition without an evidentiary hearing in August 2003. Williams raises two assignments of error relating to the court's dismissal of his petition. In his first assignment of error, Williams argues that the trial court erred in dismissing his petition for postconviction relief without an evidentiary hearing. In his second assignment of error, he claims that the trial court erred when it denied his petition as untimely. -3- Postconviction relief, which is governed by R.C. 2953.21, was amended by Am.Sub. S.B. No. 4, effective September 21, 1995. State v. Freeman (Dec. 10, 1998), Cuyahoga App. No. 73784-87. Prior to the amendment, the postconviction relief statute had allowed a petitioner to file a postconviction relief petition at any time after his conviction. State v. Schulte (1997), 118 Ohio App.3d 184, 186, 692 N.E.2d 237. As amended, R.C. 2953.21(A)(2) now imposes certain time requirements for filing a petition for postconviction relief. R.C. 2953.21(A)(2) provides: "A petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal." Further, the corresponding uncodified law provides: "A person who seeks postconviction relief pursuant to section 2953.21 through 2953.23 of the Revised Code with respect to cases in which sentence was imposed 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 (September 21, 1995), which ever is later." Section 3, S.B. No. 4, 146 Ohio Laws, Part IV, 7826. Williams was sentenced prior to the effective date of amended R.C. 2953.21, thus it is undisputed that Williams'petition had to be filed within one year from September 21, 1995. Therefore, -4- Williams was required to file his petition no later than September 23, 1996, which was the first business day following the expiration of the one-year deadline. Williams ' petition was filed on September 24, 1996, which was beyond the time limit prescribed in R.C. 2953.21 and Senate Bill 4. Williams contends that his petition should be construed as timely filed when he turned it over to prison authorities for mailing, arguing the application of the federal mailbox rule and citing Robertson v. Abramajtys (2001), 144 F. Supp.2d 829. In Houston v. Lack (1988), 487 U.S. 266, 270, the United States Supreme Court adopted the mailbox rule in holding that when a prisoner is acting pro se, his notice of appeal is considered "filed" under federal law when he turns the petition over to the prison authorities for mailing. The Robertson court expanded upon this rule and held: "In other words, the difficulties with court filings faced by pro se petitioners ­ including having no choice but to rely on both prison officials and the `vagaries of the mail' without any ability to remedy or monitor any missteps along the way ­ should suffice as adequate `cause' to excuse a state procedural default in at least certain situations." Robertson v. Abramajtys at 840. However, according to the Ohio Supreme Court, a pleading is considered filed on the day it is filed with the court. State ex rel. Tyler v. Alexander (1990), 52 Ohio St.3d 84. Thus, the Ohio Supreme Court has expressly rejected the mailbox rule: -5- "In Houston, the United States Supreme Court rested its holding on its interpretation of a federal statute and the Federal Rules of Appellate Procedure, and not on any constitutional provision. As such it is not binding on us. Nor do we find Houston persuasive." Id. Additionally, other appellate districts have rejected the prison mailbox rule as well. See, State v. Clement (June 27, 1995), Franklin App. No. 95 APA01-101; State v. Bowens (June 26, 1998), Ashtabula App. No. 97-A-0004; State v. Vroman (Apr. 15, 1997), Ross App. No. 96 CA2258; and State v. Hansbro, (June 14, 2002), Clark App. No. 2001-CA-88. Although Tyler involved a notice of appeal, and the instant case involves a postconviction petition, the difference is irrelevant. Therefore, we hold that any document is considered filed when it is filed with the clerk of court, and not when it is placed in the prison mailing system. Thus, Williams' petition was untimely. Pursuant to R.C. 2953.23(A)(1), a trial court may not entertain an untimely filed petition for postconviction relief unless either of the following apply: "(a) 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. (b) 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- R.C. 2953.23(A)(2) further requires: "(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder would have found the petitioner guilty of the offense of which the petitioner was convicted * * *." Unless the above exceptions apply, the trial court has no jurisdiction to consider an untimely petition for postconviction relief. State v. Warren (Dec. 14, 2000), Cuyahoga App. No. 76612; State v. Valentine (Dec. 7, 2000), Cuyahoga App. No. 77882; State v. Wheatt (Oct. 26, 2000), Cuyahoga App. No. 77292; State v. Gaddis (Oct. 12, 2000), Cuyahoga App. No. 77058. Williams has failed to demonstrate any of the above exceptions entitling him to relief. In his petition, he claims he was denied his constitutional right to effective assistance of counsel, there was intentional prosecutorial misconduct, and there was a substantial miscarriage of justice in his case. It is well established that any claim for postconviction relief that was or could have been raised on direct appeal is barred from consideration by the doctrine of res judicata. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. However, res judicata does not bar claims for postconviction relief when the petitioner presents evidence outside the record that was not in existence and was not available to the petitioner in time to support a direct appeal. State v. Cole (1982), 2 Ohio St.3d 112, 114, 443 N.E.2d 169. -7- Williams' claims of ineffective assistance of counsel and prosecutorial misconduct are issues that could have been raised on direct appeal because they do not involve evidence outside the record. Because those claims were not raised at the earliest opportunity, they are barred by res judicata. See Perry, supra. Additionally, Williams' claim that there was a substantial miscarriage of justice is supported by affidavits ­evidence outside the record. However, these affidavits were in existence and the information contained therein was available to Williams on direct appeal. Williams filed his direct appeal on December 7, 1995. The affidavits attached to the petition were either executed prior to the filing date of the direct appeal or during the pendency of the appeal. Additionally, the deposition of juror Michael Burris was taken prior to the filing date of the direct appeal. All the exhibits attached to Williams 'petition were available to him on direct appeal. Therefore, this claim is barred by res judicata. See Cole, supra. Because Williams'petition was untimely and no exception under R.C. 2953.23(A) applied, the trial court properly dismissed the petition for lack of jurisdiction. Even if his petition was timely filed, his claims are barred by the doctrine of res judicata. Accordingly, both assignments of error are overruled. Judgment affirmed. -8- It is ordered that appellee 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 Cuyahoga County 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. ANN DYKE, P.J. and KENNETH A. ROCCO, J. CONCUR JUDGE COLLEEN CONWAY COONEY N.B. This entry is an announcement of the courts decision. See App.R. ' 22(B), 22(D) and 26(A); Loc.App.R. 22. 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .