Opinion
22AP0048
08-07-2023
STATE OF OHIO Appellee v. KYLE PIATT Appellant
CATHERINE H. BREAULT and JON PAUL RION, Attorneys at Law, for Appellant. ANGELA WYPASEK, Prosecuting Attorney, and MICHAEL COOPER, Assistant Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE No. 2019 CRC-I 000289
CATHERINE H. BREAULT and JON PAUL RION, Attorneys at Law, for Appellant.
ANGELA WYPASEK, Prosecuting Attorney, and MICHAEL COOPER, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, JUDGE
{¶1} Kyle Piatt appeals an order of the Wayne County Court of Common Pleas that denied his petition for postconviction relief. This Court affirms.
I.
{¶2} A jury found Mr. Piatt guilty of sexual battery. On April 4, 2019, the trial court sentenced him to five years in prison. Mr. Piatt appealed, assigning ten errors, and this Court affirmed his conviction. State v. Piatt, 9th Dist. Wayne No. 19AP0023, 2020-Ohio-1177. On July 5, 2022, almost three years after the transcript was filed in his direct appeal, Mr. Piatt filed a petition for postconviction relief. His petition alleged that trial counsel was ineffective because counsel failed to investigate and subpoena two witnesses who could have testified in his defense and failed to request a continuance when another witness did not appear. Mr. Piatt's petition did not explain the reasons for his untimely filing. When the State noted that his petition was untimely, Mr. Piatt filed a motion for leave in which he argued that he was unavoidably prevented from discovering the grounds for his petition because the COVID-19 pandemic intervened and he relied on prior counsel's representation that he would file a petition for postconviction relief.
{¶3} The trial court denied Mr. Piatt's petition without a hearing, concluding that he did not demonstrate that he was unavoidably prevented from discovering the facts upon which his claims for relief were based. Mr. Piatt appealed, and he has assigned three errors for this Court's review.
II.
ASSIGNMENT OF ERROR I
THE TIMING OF THE APPEAL DURING THE COVID-19 PANDEMIC PUT A SIGNIFICANT STRAIN ON THE ATTORNEY-CLIENT PRIVILEGE AND THE ABILITY TO COMMUNICATE, RESULTING IN MR. PIATT BEING UNAVOIDABLY PREVENTED FROM DISCOVERING THE MATERIALLY EXCULPATORY EVIDENCE.
{¶4} Mr. Piatt's first assignment of error argues that his delay in filing his petition for postconviction relief resulted from "excusable neglect" because of the COVID-19 pandemic. Specifically, he argues that his petition was untimely "because he was unavoidably prevented from developing or discussing strategy with his then-appellate counsel[,]" and as a result he was prevented from speaking with two of the witnesses identified in his petition. This Court does not agree.
{¶5} Revised Code Section 2953.21(A)(2) provides that a petition for postconviction relief must be filed within 365 days of the date on which the transcript is filed in a direct appeal or, if no direct appeal is taken, within 365 days of the expiration of the time for filing an appeal. The transcript in Mr. Piatt's direct appeal was filed on July 29, 2019. The deadline for filing his petition fell within the tolling period passed by the Ohio legislature in response to the COVID-19 pandemic, but the tolling period expired on July 30, 2020. See Chapman Ents., Inc. v. McClain, 165 Ohio St.3d 428, 2021-Ohio-2386, ¶ 10-13. See also State v. Porter, 7th Dist. Belmont No. 20 BE 0033, 2021-Ohio-4630, ¶ 15-17 (considering the tolling period in connection with a petition for postconviction relief). Mr. Piatt filed his petition on July 5, 2022, well after the deadline provided by Section 2953.21(A)(2)-and extended by the tolling period-passed.
{¶6} "A petitioner * * * who files a petition more than 365 days after the trial transcript was filed in the court of appeals in his direct appeal * * * must satisfy the jurisdictional requirements in R.C. 2953.23(A)(1) or (2) for an untimely, second, or successive petition for postconviction relief." State v. Hatton, 169 Ohio St.3d 446, 2022-Ohio-3991, ¶ 37, citing State v. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, ¶ 20. See also State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 22. A trial court may only entertain an untimely or successive petition for postconviction relief when:
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.R.C. 2953.23(A)(1)(a). A petitioner, other than one who challenges a sentence of death, must also demonstrate 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[.]" R.C. 2953.23(A)(1)(b). When the requirements of Section 2953.23(A)(1) have not been met, a trial court cannot consider an untimely or successive petition. See Apanovitch at ¶ 36. "[W]hether a trial court has subject-matter jurisdiction to entertain an untimely, second, or successive petition for postconviction relief is a question of law, which we review de novo." Hatton at ¶ 38.
{¶7} Mr. Piatt has not alleged that the United States Supreme Court has recognized a new right that applies to those in his situation, so he had to establish that he was unavoidably prevented from discovering the facts underlying his claims. See State v. Lawless, 9th Dist. Wayne No. 19A0062, 2020-Ohio-3530, ¶ 5. A petitioner is unavoidably prevented from discovery of the facts upon which the petition relies when the petitioner "was unaware of those facts and was unable to learn of them through reasonable diligence." State v. Burton, 9th Dist. Summit No. 28359, 2017-Ohio-7588, ¶ 9, quoting State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19. Mr. Piatt's argument on appeal is limited to two of the witnesses that he identified in his petition. In his petition, however, Mr. Piatt acknowledged that he was aware of the witnesses and the substance of their potential testimony at the time of trial.
The Supreme Court of Ohio has rejected a due-diligence standard with respect to postconviction claims arising under Brady v. Maryland¸ 373 U.S. 83 (1963). Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, at ¶ 21-25. Mr. Piatt, however, did not make any Brady allegations in connection with the two witnesses at issue in his first assignment of error.
{¶8} Mr. Piatt argues that as a result of the COVID-19 pandemic, he was not able to discuss the testimony of these witnesses with appellate counsel and to file a timely petition. The facts underlying his claims, however, were known to him at the time of trial. Consequently, the trial court did not err by concluding that his petition was untimely and dismissing the petition without a hearing. Mr. Piatt's first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR II
MR. PIATT'S CLAIM IS NOT BARRED BY RES JUDICATA BECAUSE IT WAS NOT ACTUALLY LITIGATED AND COULD NOT HAVE BEEN LITIGATED AT THE TIME OF TRIAL.
ASSIGNMENT OF ERROR III
THE CUMULATIVE EFFECT OF THE INABILITY TO OFFER IMPEACHMENT EVIDENCE ON MULTIPLE FRONTS AGAINST THE COMPLAINING WITNESS, A.M., RESULTED IN PREJUDICE AGAINST MR. PIATT, AND SUCH EVIDENCE, IF INTRODUCED, WOULD HAVE SERVED TO UNDERMINE THE CONFIDENCE OF THE JURY'S VERDICT.
{¶9} In his second assignment of error, Mr. Piatt argues that the trial court erred by determining that his claims for relief were barred by res judicata. His third assignment of error argues that he would not have been found guilty but for the errors identified in his petition. Because this Court has determined that the trial court did not err by concluding that his petition was untimely and, therefore, that the trial court lacked subject matter jurisdiction to consider his petition, his second and third assignments of error are moot. See Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 36; App.R. 12(A)(1)(c).
III.
{¶10} Mr. Piatt's first assignment of error is overruled. His second and third assignments of error are moot. The judgment of the Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARR, J. FLAGG LANZINGER, J. CONCUR.