State v. Phelps

[Cite as State v. Phelps, 2026-Ohio-1575.]


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


  STATE OF OHIO                                          Case No. 2025 CA 00035

   Plaintiff - Appellee                                  Opinion and Judgment Entry

  -vs-                                                   Appeal from the Fairfield County Court of
                                                         Common Pleas, Case No. 2019 CR 00499
  ROBERT PHELPS
                                                         Judgment: Affirmed
  Defendant - Appellant
                                                         Date of Judgment Entry: April 30, 2026



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

APPEARANCES: R. Kyle Witt, Fairfield County Prosecutor, Austin R. Lines, Assistant
Prosecuting Attorney for Plaintiff-Appellee; Robert Phelps, Pro se.




Hoffman, P.J.


         {¶1} Defendant-appellant Robert Phelps appeals the judgment entered by the

Fairfield County Common Pleas Court dismissing his petition for post-conviction relief

on the basis it was untimely filed. Plaintiff-appellee is the State of Ohio.

                                         STATEMENT OF THE CASE1

         {¶2} On December 22, 2020, Appellant entered pleas of guilty in the Fairfield

County Common Pleas Court to twelve counts of aggravated trafficking in drugs and one

count of engaging in a pattern of corrupt activity. In exchange for his guilty pleas, the


1 A rendition of the facts is unnecessary to our disposition of the appeal.
State dismissed the remaining seventy-one counts of the indictment. Pursuant to a

negotiated plea agreement, the parties jointly recommended a sentence of fifteen years of

incarceration.   The trial court convicted Appellant upon his pleas of guilty and in

accordance with the joint recommendation, sentenced Appellant to fifteen years of

incarceration.   Appellant appealed to this Court, and we affirmed the judgment of

conviction and sentence. State v. Phelps, 2022-Ohio-3025 (5th Dist.).

       {¶3} Appellant filed a petition for post-conviction relief in the trial court on

September 4, 2025. The petition alleged prosecutorial misconduct in the presentation of

evidence to the grand jury, ineffective assistance of trial counsel for failing to move for

suppression of evidence and/or dismissal of the charges, ineffective assistance of counsel

for failing to investigate and soliciting money from Appellant as court-appointed counsel,

and the cumulative effect of his claims constituted a violation of his constitutional rights.

The trial court dismissed the petition as untimely filed. It is from the September 9, 2025

judgment of the trial court Appellant prosecutes his appeal, assigning as error:



              APPELLANT’S DUE PROCESS AND EQUAL PROTECTION OF

       THE LAW RIGHTS, AS GUARANTEED BY THE FIFTH AND

       FOURTEENTH          AMENDMENTS           OF     THE     UNITED        STATES

       CONSTITUTION AND ARTICLE I OF THE OHIO CONSTITUTION, WERE

       VIOLATED AND DENIED AS A RESULT OF JUDGE TRIMMER ABUSING

       HIS DISCRETION BY NEGLECTING TO FILE FINDINGS OF FACT AND

       CONCLUSIONS OF LAW, AND REFUSING TO ORDER THE REQUESTED

       EVIDENTIARY HEARING.
        {¶4} Appellant argues the trial court erred in dismissing his petition as untimely

without issuing findings of fact and conclusions of law, and without holding an

evidentiary hearing. We disagree.

        {¶5} R.C. 2953.21(A)(2)(a) provides in pertinent part:



                Except as otherwise provided in section 2953.23 of the Revised Code,

        a petition under division (A)(1)(a)(i), (ii), or (iii) of this section shall be filed

        no later than three hundred sixty-five 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[.]



        {¶6} The transcript of the proceedings was filed in this Court in Appellant’s direct

appeal on June 8, 2021. Therefore, Appellant’s petition, filed September 4, 2025, is

clearly untimely filed.

        {¶7} R.C. 2953.23(A)(1)(a) allows the trial court to entertain an untimely-filed

petition under certain circumstances:



                (A) Whether a hearing is or is not held on a petition filed pursuant to

        section 2953.21 of the Revised Code, a court may not entertain a petition

        filed after the expiration of the period prescribed in division (A) of that

        section or a second petition or successive petitions for similar relief on

        behalf of a petitioner unless division (A)(1) or (2)2 of this section applies:



2 Subsection (A)(2) deals with DNA evidence which is not at issue in the instant case.
             (1) Both of the following 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.

             (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 or,

      if the claim challenges a sentence of death that, but for constitutional error

      at the sentencing hearing, no reasonable factfinder would have found the

      petitioner eligible for the death sentence.



      {¶8} A trial court has no jurisdiction to hear an untimely petition for post-

conviction relief unless the movant meets the requirements set forth in R.C. § 2953.23(A).

State v. Robinson, 2022-Ohio-3566, ¶ 12 (5th Dist.).

      {¶9} Appellant’s petition does not attempt to demonstrate he was unavoidably

prevented from discovery of the facts upon which he must rely to present his claim for

relief, and the petition did not demonstrate by clear and convincing evidence, but for the

alleged constitutional error, no reasonable factfinder would have found him guilty of the

offenses of which he was convicted. Appellant presented no evidence in support of his

petition other than the general allegations set forth in his petition regarding the conduct
the prosecutor and his court-appointed trial counsel. We find the trial court did not err

in finding the petition was untimely filed.

       {¶10} A trial court has no duty to issue findings of fact and conclusions of law

when dismissing a petition as untimely filed. State ex rel. George v. Burnside, 2008-

Ohio-2702, ¶ 6. Further, when a trial court lacks jurisdiction to consider an untimely-

filed petition, it is not necessary for the court to hold an evidentiary hearing. State v.

Moore, 2015-Ohio-550, ¶ 12 (2nd Dist.). We find the trial court did not err in dismissing

Appellant’s petition without an evidentiary hearing and without issuing findings of fact

and conclusions of law.

       {¶11} The assignment of error is overruled.

       {¶12} The judgment of the Fairfield County Court of Common Pleas is affirmed.

       {¶13} Costs to Appellant.



By: Hoffman, P.J.

Montgomery, J. and

Popham, J. concur.