State v. McRae

[Cite as State v. McRae, 2026-Ohio-1463.]


                               IN THE OHIO COURT OF APPEALS
                                 FIFTH APPELLATE DISTRICT
                                   RICHLAND COUNTY, OHIO


  STATE OF OHIO
                                                  Case No. 2025 CA 0082

         Plaintiff – Appellee                     Opinion And Judgment Entry

  -vs-                                            Appeal from the Richland County Court
                                                  of Common Pleas, Case No. 2022-CR-
                                                  0800N
  CHARLES MCRAE
                                                  Judgment: Affirmed
         Defendant - Appellant
                                                  Date of Judgment Entry: April 22, 2026



BEFORE:         William B. Hoffman, Robert G. Montgomery, and Kevin W. Popham,
Judges

APPEARANCES: Jodie M. Schumacher, Michelle Fink, for Plaintiff-Appellee; Charles
A. McRae, PRO SE for Defendant-Appellant


                                            OPINION

Popham, J.,

         {¶1}   Appellant Charles McRae (“McRae”) appeals the August 28, 2025,

judgment of the Court of Common Pleas for Richland County, Ohio denying his motion

for leave to file an untimely petition for postconviction relief. For the reasons set forth

below, we affirm.

         Facts and Procedural History

         {¶2}   On November 19, 2022, McRae forced entry into his sister’s home and

assaulted her, causing serious injuries, including a broken arm and fractures requiring
surgical repair with plates and screws. The assault was captured on the home’s Ring

camera system. State v. McRae, 2024-Ohio-5401 (5th Dist.) (“McRae II”).

       {¶3}   On January 5, 2023, the Richland County Grand Jury indicted McRae on

one count of aggravated burglary, a felony of the first degree; two counts of kidnapping,

both felonies of the first degree; and one count of felonious assault, a felony of the second

degree. Each count included a repeat violent offender (“RVO”) specification. McRae was

also charged with domestic violence, criminal damaging or endangering, and criminal

mischief, all misdemeanors of the first degree.

       {¶4}   On March 19, 2023, McRae entered guilty pleas to all counts in the

indictment. The trial court ordered a presentence investigation and scheduled the matter

for sentencing.

       {¶5}   At the June 22, 2023, sentencing hearing, the trial court merged several

counts, and the State elected to proceed on Counts 1, 2, and 4—aggravated burglary,

kidnapping, and felonious assault. The court imposed prison terms of 10 to 15 years for

aggravated burglary, 3 years for kidnapping, and 5 years for felonious assault. The court

also imposed a 2-year term for the RVO specification, for an aggregate indefinite sentence

of 20 to 25 years.

       {¶6}   McRae appealed - raising two assignments of error: (1) the trial court erred

in designating him a repeat violent offender, and (2) he was denied effective assistance of

counsel. State v. McRae, 2024-Ohio-922 (5th Dist.) (“McRae I”).

       {¶7}   On appeal, this Court held that the trial court erred by imposing less than

the maximum minimum sentence for aggravated burglary and by imposing a sentence on

the RVO specification without first imposing the maximum sentence on the underlying
offense, as required by R.C. 2929.14. Although this Court upheld the convictions and the

RVO designation, we remanded the matter for resentencing.

      {¶8}   On remand, the trial court appointed counsel and conducted a resentencing

hearing on April 5, 2024. The court-imposed prison terms of 11 to 15 years for aggravated

burglary, 3 years for kidnapping, and 4 years for felonious assault, along with a 2-year

term for the RVO specification, for an aggregate indefinite sentence of 20 to 25.5 years.

      {¶9}   McRae again appealed. Through counsel, he raised five assignments of

error: (1) the trial court failed to make findings required by R.C. 2929.14(C)(4) when

imposing consecutive sentences; (2) the trial court failed to conduct a hearing on his

presentence motion to withdraw his plea; (3) the failure to conduct a hearing violated his

constitutional rights; (4) the State suppressed exculpatory medical records; and (5) the

trial court failed to consider lesser-included offenses. State v. McRae, 2024-Ohio-5401

(5th Dist.) (“McRae II”).

      {¶10} On November 14, 2024, this Court affirmed McRae’s conviction and

sentence. Id. On December 3, 2024, McRae filed a motion for reconsideration, which this

Court denied on December 13, 2024. On April 11, 2025, he filed a motion for delayed

appeal to the Supreme Court of Ohio, which denied that motion on June 30, 2025. State

v. McRae, 2025-Ohio-1846.

      {¶11} Separately, on February 20, 2025, McRae filed a motion requesting public

records from the Richland County Clerk of Courts. Because the motion did not include a

case number, it was not filed in his criminal case. On March 10, 2025, the trial court

denied the motion. McRae appealed that decision to this Court (Case No. 25-CA-19). He

later moved to stay the appeal, and the State moved to dismiss for failure to prosecute.
On July 28, 2025, this Court denied the motion to stay, and on August 6, 2025, dismissed

the appeal for want of prosecution.

       {¶12} On June 16, 2025, McRae filed a pro se motion for leave to file a petition for

postconviction relief under R.C. 2953.21, along with the petition itself. Neither filing

included affidavits or evidentiary materials. On July 2, 2025, McRae filed motions for

appointment of counsel and for expert assistance.

       {¶13} By judgment entry filed August 28, 2025, the trial court denied - without

conducting a hearing - McRae’s motion for leave to file a petition for postconviction relief,

as well as his motions for appointment of counsel and expert assistance. In an eighteen-

page decision containing findings of fact and conclusions of law, the trial court

determined that McRae’s petition was untimely and that his claims were barred by res

judicata because they either were, or could have been, raised on direct appeal.

       Assignments of Error

       {¶14} McRae presents five assignments of error for our consideration:

       {¶15} “I. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE IMPOSITION OF

SEPARATE      SENTENCE       (sic)    FOR ALLIED       OFFENSES      WHICH      VIOLATED

APPELLANT (sic) DUE PROCESS RIGHTS.”

       {¶16} “II. THE TRIAL COURT FAILED TO EMPLOY AN ADEQUATE

RECORDING DEVICE TO MAINTAIN A COMPLETE RECORD OF ALL PROCEEDINGS

THEREBY DENYING APPELLANT HIS CONSTITUTIONAL RIGHT AS GUARANTEED

BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION, ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND CRIM.

R. 22.”
      {¶17} “III. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

WHEN COUNSEL CONVINCED APPELLANT TO PLEAD GUILTY TO A REPEAT

VIOLENT     OFFENDER       SPECIFICATION        DESPITE     THE    FACT     HIS   PRIOR

CONVICTION WAS OVER TWENTY YEARS OLD WHICH IS CONTRARY TO THE

REQUIREMENTS OF 2929.14 (sic)(B)(2).”

      {¶18} “IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL

WHEN HIS ATTORNEY ADVISED HIM TO TURN DOWN THE STATE PLEA OFFER

OF 10 YEARS FOR A BETTER PLEA DEAL WITH LESSER SENTENCES WHICH

APPELLANT RECEIVED MORE TIME AND VIOLATED HIS 6th AMENDMENT

RIGHTS.”

      {¶19} “V. THE TRIAL COURT HAD NO JURISIDICTION TO ACCEPT

APPELLANT’S GUILITY PLEA WHILE HIS COMPETENCY TO STAND TRIAL WAS IN

QUESTION.”

      Pro se Appellants

      {¶20} We understand that McRae has filed this appeal pro se. Nevertheless, "like

members of the bar, pro se litigants are required to comply with rules of practice and

procedure." Hardy v. Belmont Correctional Inst., 2006-Ohio-3316, ¶ 9 (10th Dist.). See,

also, State v. Hall, 2008-Ohio-2128, ¶11 (11th Dist.). We also understand that "an

appellate court will ordinarily indulge a pro se litigant where there is some semblance of

compliance with the appellate rules." State v. Richard, 2005-Ohio-6494, ¶4 (8th Dist.)

(internal quotation omitted). See also Haines v. Kerner, 404 U.S. 519, 520-521 (1972)

(pleadings prepared by prisoners who do not have access to counsel should be liberally

construed); McNeil v. United States, 508 U.S. 106, 113 (1993); Houston v. Lack, 487 U.S.
266 (1988) (some procedural rules must give way because of the unique circumstance of

incarceration). See also State v. Harris, 2024-Ohio-2993, ¶¶ 9 - 10 (5th Dist.).

       {¶21} Although in a pro se action this Court allows latitude to the unrepresented

defendant in the presentation of his case, “a substantial disregard of the whole body of

these ruled cannot be tolerated.” Wellington v. Mahoning Cty. Bd. of Elections, 2008-

Ohio-554, ¶ 18. This Court does not have discretion and must disregard facts, arguments,

or evidence presented in the appellate brief when those facts, arguments, or evidence were

not presented to the trial court. In State v. Hooks, 92 Ohio St.3d 83 (2001), the Supreme

Court of Ohio noted, “a reviewing court cannot add matter to the record before it that was

not a part of the trial court's proceedings and then decide the appeal on the basis of the

new matter. See, State v. Ishmail, 54 Ohio St.2d 402 (1978).” It is also a longstanding rule

that the record cannot be enlarged by factual assertions in the brief. Dissolution of Doty

v. Doty, 1980 Ohio App.LEXIS 12935 (4th Dist., Feb. 28, 1980), citing Scioto Bank v.

Columbus Union Stock Yards, 120 Ohio App. 55, 59 (10th Dist. 1963). New material and

factual assertions contained in any brief in this court may not be considered. See North

v. Beightler, 2006-Ohio-6515, ¶ 7, quoting Dzina v. Celebrezze, 2006-Ohio-1195, ¶ 16.

       {¶22} Therefore, we have disregarded facts in the parties’ briefs, and exhibits

attached to those briefs, which are outside of the trial court record. State v. Stevens,

2023-Ohio-2736, ¶ 16 (5th Dist.).

       {¶23} We note that the underlying action was a criminal case; however, a petition

for postconviction relief is a civil matter. An indigent criminal defendant has neither a

federal nor a state constitutional right to be represented by an attorney in a postconviction

relief proceeding. Pennsylvania v. Finley, 481 U.S. 551 (1987); State v. Crowder, 60 Ohio

St.3d 151 (1991). However, when a person is convicted of a criminal offense and claims
that his or her constitutional rights were violated, the person, pursuant to R.C. 2953.21,

may petition the court that imposed the sentence and request that the court vacate or set

aside the judgment or sentence. Crowder, 60 Ohio St.3d at 153. Therefore, a petition for

postconviction relief is a means to reach constitutional issues that would otherwise be

impossible to reach because the evidence supporting those issues is not contained in the

record of the petitioner's criminal conviction. State v. Murphy, 2000 Ohio App. LEXIS

6129 (10th Dist. Dec. 26, 2000); Accord State v. Zich, 2017-Ohio-414, ¶ 9 (6th Dist.);

State v. Hamm, 2024-Ohio-1621, ¶ 20 (5th Dist.).

       {¶24} In the case at bar, there is at least some semblance of compliance with the

appellate rules. "[I]t is a fundamental tenet of judicial review in Ohio that courts should

decide cases on the merits." DeHart v. Aetna Life Ins. Co., 69 Ohio St.2d 189,192 (1982),

citing Cobb v. Cobb, 62 Ohio St.2d 124 (1980). We can sufficiently discern the facts

supporting McRae’s argument from the record in this matter. Therefore, in the interests

of justice, we shall attempt to consider McRae’s arguments.

                                       I, II, III, IV, & V

       Postconviction Relief Principles

       {¶25} R.C. 2953.21(A)(1) permits a defendant to file a petition for postconviction

relief alleging that a constitutional violation rendered the judgment void or voidable.

       {¶26} Postconviction relief is a civil collateral attack on a criminal judgment, not

a second appeal. State v. Calhoun, 86 Ohio St.3d 279, 281 (1999); State v. Phillips, 2002-

Ohio-823 (9th Dist.). To obtain relief, a petitioner must demonstrate a constitutional

violation that renders the conviction void or voidable. R.C. 2953.21; State v. Watson, 126

Ohio App.3d 316, 323 (12th Dist. 1998).
       Evidentiary Hearing

       {¶27} A petitioner is not automatically entitled to an evidentiary hearing.

Calhoun, 86 Ohio St.3d at 282. A trial court may dismiss a petition without a hearing

where the petitioner fails to present sufficient operative facts to establish substantive

grounds for relief or where the claims are barred by res judicata. Id. at paragraph two of

the syllabus; State v. Lentz, 70 Ohio St.3d 527, 530 (1994).

       {¶28} To warrant a hearing, a petitioner must submit evidentiary materials

containing sufficient operative facts demonstrating a constitutional violation. State v.

Jackson, 64 Ohio St.2d 107, 111 (1980). Broad or conclusory assertions are insufficient.

Id. When ineffective assistance of counsel is alleged, the petitioner must satisfy the two-

prong test of Strickland v. Washington, 466 U.S. 668 (1984), by showing deficient

performance and resulting prejudice.

       {¶29} In evaluating affidavits submitted in support of the petition, a trial court

may assess credibility and consider whether the affidavits are internally inconsistent, rely

on hearsay, are drafted in similar language, or contradict the record. Calhoun, 86 Ohio

St.3d at 285.

       Res Judicata

       {¶30} Res judicata provides an independent basis for denying postconviction

relief. State v. Perry, 10 Ohio St.2d 175 (1967); Lentz, 70 Ohio St.3d at 530. Under this

doctrine, a defendant may not raise claims in a postconviction petition that were raised

or could have been raised at trial or on direct appeal. State v. Szefcyk, 77 Ohio St.3d 93

(1996); State v. Reynolds, 79 Ohio St.3d 158, 161 (1997).
       {¶31} This principle applies to ineffective-assistance claims when the defendant,

represented by new counsel on appeal, could have raised the issue without resort to

evidence outside the record. State v. Cole, 2 Ohio St.3d 112 (1982), syllabus.

       Timeliness

       {¶32} The trial court properly treated McRae’s motion as an untimely petition for

postconviction relief governed by R.C. 2953.21.

       {¶33} Under R.C. 2953.21(A)(2), a petition must be filed within 365 days after the

trial transcript is filed in the direct appeal. Here, the transcript from McRae’s initial

appeal was filed on September 20, 2023, and the transcript from the resentencing appeal

was filed on June 10, 2024. The respective deadlines were September 19, 2024, and June

10, 2025.

       {¶34} McRae filed his petition on June 16, 2025, after both deadlines. The petition

is therefore untimely.

       Jurisdiction Under R.C. 2953.23

       {¶35} Because the petition was untimely, the trial court lacked jurisdiction to

consider it unless McRae satisfies an exception under R.C. 2953.23(A). State v.

Apanovitch, 2018-Ohio-4744, ¶ 36; State v. Parker, 2019-Ohio-3848, ¶ 19.

       {¶36} To invoke the exception, McRae was required to demonstrate both: (1) that

he was unavoidably prevented from discovering the facts underlying his claims, or that a

new retroactive constitutional right applies; and (2) by clear and convincing evidence

that, but for the alleged error, no reasonable factfinder would have found him guilty.

       {¶37} Failure to satisfy these requirements deprives the trial court of jurisdiction.

Apanovitch, at ¶ 36. We review this issue de novo. Id. at ¶ 24; State v. Bethel, 2022-Ohio-

783, ¶ 20.
       Unavoidably Prevented from Discovering the Facts

       {¶38} McRae did not demonstrate that he was unavoidably prevented from

discovering the facts supporting his claims. He neither advanced such an argument nor

relied on a newly recognized retroactive constitutional right. See State v. Morris, 2025-

Ohio-1800, ¶ 11 (10th Dist.).

       {¶39} Instead, McRae relies on documents attached to his appellate brief. Those

materials were not presented to the trial court and are not part of the record on appeal –

we will not consider the documents. As such, these materials cannot establish that McRae

was unavoidably prevented from discovering the facts underlying his claims.

       {¶40} Moreover, the record reflects that McRae’s claims are based on facts known

to him at the time of trial and direct appeal. Claims based on such facts either were raised

or could have been raised on direct appeal and are therefore barred by res judicata. Perry,

10 Ohio St.2d 175. McRae’s attempt to relitigate those issues through an untimely petition

is foreclosed.

       {¶41} Because McRae failed to satisfy the first prong of R.C. 2953.23(A)(1), the

trial court lacked jurisdiction to consider the petition.

       Alternative Holding

       {¶42} Even if McRae had satisfied the jurisdictional requirements of R.C.

2953.23(A), his petition would fail on the merits. McRae submitted no affidavits or

evidentiary materials in the trial court to support his claims. Unsupported or conclusory

allegations do not establish substantive grounds for relief and warrant dismissal without

a hearing. Calhoun, 86 Ohio St.3d at 282; Jackson, 64 Ohio St.2d at 111. To the extent

McRae alleges ineffective assistance of counsel, he failed to present operative facts

demonstrating either deficient performance or resulting prejudice as required by
Strickland v. Washington, 466 U.S. 668 (1984). Moreover, the claims asserted either

were raised or could have been raised on direct appeal and are therefore barred by res

judicata. Perry, 10 Ohio St.2d 175. Accordingly, even if the trial court had jurisdiction to

consider the petition, it properly denied relief.

       Disposition

       {¶43} McRae failed to satisfy the jurisdictional requirements of R.C. 2953.23(A).

He did not demonstrate that he was unavoidably prevented from discovering the facts

underlying his claims, nor did he rely on a newly recognized retroactive constitutional

right. His claims are further barred by res judicata.

       {¶44} The trial court therefore properly denied McRae’s motion for leave to file an

untimely petition for postconviction relief. McRae’s assignments of error I, II, III, IV and

V are overruled.
      For the reasons stated in our Opinion, the judgment of the Court of Common Pleas

for Richland County, Ohio is affirmed. Costs to be paid by Appellant Charles McRae.


By: Popham, J.

Hoffman, P.J. and

Montgomery, J., concur