State v. Smith

[Cite as State v. Smith, 2026-Ohio-1531.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                     v.

                                       SAMMIE SMITH, JR.,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 25 MA 0110


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2009 CR 01197

                                           BEFORE:
                    Katelyn Dickey, Cheryl L. Waite, Mark A. Hanni, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Nils Peter Johnson, Special Prosecuting Attorney, for Plaintiff-Appellee and

 Sammie Smith, Jr., Defendant-Appellant.


                                            Dated: April 28, 2026
                                                                                         –2–


 DICKEY, J.

       {¶1}   Pro se Appellant, Sammie Smith, Jr., appeals from the November 5, 2025
judgment of the Mahoning County Court of Common Pleas dismissing without a hearing
his untimely third pro se petition for postconviction relief, captioned “Motion for leave to
file a motion for a new trial pursuant to C.R. 33B,” which cited to and relied on R.C.
2953.21, “Petition for postconviction relief; discovery.” On appeal, Appellant raises three
assignments of error: (1) the trial court erred in mischaracterizing his motion for a new
trial as a petition for postconviction relief; (2) the court erred in dismissing his motion
because he believes the record reveals Appellee, the State of Ohio, withheld evidence;
and (3) the court erred in dismissing his motion as untimely. Because Appellant’s third
pro se petition was untimely filed, no exception entitling him to relief was demonstrated,
his claims are barred by principles of res judicata, and there are additionally no
substantive, supporting grounds, the trial court did not abuse its discretion in reviewing
his motion as a petition for postconviction relief and dismissing it without a hearing.
Accordingly, we affirm.

                          FACTS AND PROCEDURAL HISTORY

       {¶2}   This court set forth the relevant facts and procedural history underlying this
matter in Appellant’s first pro se petition for postconviction relief in State v. Smith, 2017-
Ohio-7770, ¶ 2-6 (7th Dist.):

              Smith was convicted [in August 2011] of multiple counts of
       aggravated burglary, robbery and rape with attached repeat violent offender
       specifications. The indictment and convictions arose from a home invasion
       lasting over an hour wherein Smith dragged the victim from her bed where
       she had been sleeping with her two year old child and subjected her to
       multiple sex acts, locking her in a closet for a time, stealing money from the
       victim and her son, and then forcing her to bathe before he left. State v.
       Smith, 7th Dist. No. 11 MA 0120, 2013-Ohio-756, ¶ 3-15 (Smith I).




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             In his direct appeal, Smith’s convictions were upheld as well as parts
      of his sentence. His sentences for two repeat violent offender specifications
      were reversed and the concurrent sentences imposed on the merged
      aggravated burglary and robbery counts were reversed and remanded for
      a limited resentencing hearing for the state to elect which offense it would
      ask the trial court to impose a sentence. Id., ¶ 150. Smith’s appeal to the
      Ohio Supreme Court was dismissed as having been improvidently granted.

             While his direct appeal was pending, Smith, through the office of the
      public defender, filed a “Petition to Vacate or Set Aside Judgment of
      Conviction or Sentence” and attached two affidavits. Smith, pro se,
      supplemented this petition five times. Together, these pleadings asserted
      multiple grounds and in general argued ineffective assistance of counsel
      regarding the questioning of State witnesses Michael Cariola and Brenda
      Gerardi and the inability to speak with representatives from Bode
      Technology. The State opposed Smith’s petition with a motion for judgment
      on the pleadings, contending Smith failed to support the petition with
      competent, credible evidence dehors the record. Noting it had not been
      served with Smith’s petition as required by statute, the State conceded the
      petition was timely.

             The public defender’s office filed a response to the State’s motion for
      judgment on the pleadings, conceding that Smith’s Confrontation Clause
      claims had been rejected by this court in his direct appeal in Smith I.
      Subsequently the public defender’s office moved to withdraw from
      representation due to irreconcilable differences with Smith on how to
      proceed.

             The trial court denied the petition and pro se supplements noting that
      Smith did not demonstrate a denial or infringement of his Constitutional
      rights or assert facts that provide substantive grounds for relief.




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Smith, 2017-Ohio-7770, at ¶ 2-6 (7th Dist.) (First Pro Se Petition for Postconviction Relief
Appeal); see also State v. Smith, 2019-Ohio-4501, ¶ 2 (7th Dist.) (Second Pro Se Petition
for Postconviction Relief Appeal).
       {¶3}   At issue here, on August 5, 2025, Appellant filed an untimely third pro se
petition for postconviction relief, captioned “Motion for leave to file a motion for a new trial
pursuant to C.R. 33B,” which cited to and relied on R.C. 2953.21, “Petition for
postconviction relief; discovery.” Appellant raised two claims involving Brady v. Maryland,
373 U.S. 83 (1963) violations. On November 3, 2025, the State filed a response indicating
that because Appellant’s motion relies on R.C. 2953.21, it should be dismissed as
untimely.
       {¶4}   On November 5, 2025, the trial court agreed with the State and dismissed
without a hearing Appellant’s untimely third pro se petition for postconviction relief.
       {¶5}   Appellant filed the instant pro se appeal, Case No. 25 MA 0110, and raises
three assignments of error.

                             ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION AND MADE AN ERROR
       IN     CLEARLY       ESTABLISHED           LAW,      WHEN       THE     COURT
       MISCHARACTERIZED A MOTION FOR LEAVE TO FILE A MOTION FOR
       A NEW TRIAL PURSUANT TO CRIM.R. 33(B) AS A 2953.21 PETITION
       FOR POST CONVICTION RELIEF.

                             ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE
       MOTION FOR LEAVE TO FILE A CRIM.R. 33(B) MOTION FOR A NEW
       TRIAL BECAUSE THE SUPPORTING EXHIBIT SHOWS THAT THE
       PROSECUTOR AND BCI WITHHELD THE EVIDENCE THAT THE
       DEFENDANT RELIED ON TO SEEK LEAVE.




Case No. 25 MA 0110
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                            ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN LAW,
       WHEN THE COURT OVERRULED THE MOTION FOR LEAVE TO FILE
       A MOTION FOR A NEW TRIAL PURSUANT TO CRIM.R. 33(B) AS
       UNTIMELY.

       {¶6}    In his first assignment of error, Appellant argues the trial court erred in
mischaracterizing his motion for a new trial as a petition for postconviction relief. In his
second assignment of error, Appellant contends the court erred in dismissing his motion
because he believes the record reveals the State withheld evidence. In his third
assignment of error, Appellant asserts the court erred in dismissing his motion as
untimely.     Because Appellant’s assignments are interrelated, we will address them
together for ease of discussion.
       {¶7}    Appellant’s August 5, 2025 pro se “Motion for leave to file a motion for a
new trial pursuant to C.R. 33B” cited to and relied on R.C. 2953.21, “Petition for
postconviction relief; discovery.” As such, the trial court did not abuse its discretion in
reviewing Appellant’s motion as a petition for postconviction relief. See, e.g., State v.
Clark, 2017-Ohio-120, ¶ 5, 13, 16-17 (2d Dist.).

               Post-conviction relief is a collateral civil attack on a criminal
       judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 1994-Ohio-111, 639
       N.E.2d 67. R.C. 2953.21 through R.C. 2953.23 govern petitions for post-
       conviction and provide that “any defendant who has been convicted of a
       criminal offense and who claims to have experienced a denial or
       infringement of his or her constitutional rights may petition the trial court to
       vacate or set aside the judgment and sentence.” State v. Martin, 7th Dist.
       No. 12 MA 167, 2013-Ohio-2881, ¶ 13.

               We apply an abuse of discretion standard when reviewing a trial
       court’s decision to deny a post-conviction relief petition without a
       hearing. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d
       77, ¶ 58. “Abuse of discretion means an error in judgment involving a


Case No. 25 MA 0110
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       decision that is unreasonable based upon the record; that the appellate
       court merely may have reached a different result is not enough.” State v.
       Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶ 21.

              “[P]ursuant to R.C. 2953.21(C), a trial court properly denies a
       defendant’s petition for postconviction relief without holding an evidentiary
       hearing where the petition, the supporting affidavits, the documentary
       evidence, the files, and the records do not demonstrate that petitioner set
       forth sufficient operative facts to establish substantive grounds for
       relief.” State v. Calhoun, 86 Ohio St.3d 279, 291, 1999-Ohio-102, 714
       N.E.2d 905. Substantive grounds for relief exist where there was a denial
       or infringement of the petitioner’s constitutional rights so as to render the
       judgment void or voidable. State v. Cornwell, 7th Dist. No. 00-CA-217,
       2002-Ohio-5177, ¶ 25.

Smith, 2017-Ohio-7770, at ¶ 8-10 (7th Dist.).

       {¶8}   Here, Appellant failed to attach credible evidence to support his assertions.
Appellant has further failed to show that if his claims are proven, the result of the trial
would have been different. Thus, the trial court did not abuse its discretion in dismissing
without a hearing Appellant’s third pro se petition for postconviction relief. See Calhoun
at 291.
       {¶9}   “A postconviction petition may also be dismissed without a hearing where
the claims are barred by res judicata.” State v. West, 2009-Ohio-3347, ¶ 24 (7th Dist.).
Res judicata bars any claim or defense that was raised or could have been raised in an
earlier proceeding:

              Under the doctrine of res judicata, a final judgment of conviction bars
       the convicted defendant from raising and litigating in any proceeding, except
       an appeal from that judgment, any defense or any claimed lack of due
       process that was raised or could have been raised by the defendant at the
       trial which resulted in that judgment of conviction or on an appeal from that
       judgment.



Case No. 25 MA 0110
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Smith, 2019-Ohio-4501, at ¶ 5 (7th Dist.), quoting State v. Perry, 10 Ohio St.2d 175, 180
(1967).

       {¶10} “‘[R]es judicata bars claims that could have been raised on direct appeal or
any previous post-judgment motions.’” State v. Anderson, 2024-Ohio-2704, ¶ 13 (7th
Dist.), quoting Smith, 2019-Ohio-4501, at ¶ 8 (7th Dist.).
       {¶11} Like his second pro se petition, Appellant’s third request for postconviction
relief is also untimely.

               [A] petition for postconviction relief must be filed within the statutorily
       prescribed time.     R.C. 2953.21(A)(2)(a) states a postconviction petition
       “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 . . .”

               R.C. 2953.23 provides an exception to the 365-day requirement.
       According to R.C. 2953.23(A)(1), a petitioner may file a delayed petition only
       if both of the following subsections 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 . . .

       R.C. 2953.23(A)(1)(a)-(b).

Anderson, 2024-Ohio-2704, at ¶ 15-16 (7th Dist.).



Case No. 25 MA 0110
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         {¶12} In this case, the record establishes the trial transcripts were filed in
Appellant’s direct appeal on October 25, 2011. Appellant did not file the third pro se
postconviction petition at issue until August 5, 2025, almost 14 years after the trial
transcripts were filed in the direct appeal and well beyond the 365-day deadline. See
R.C. 2953.21(A)(2)(a). Thus, Appellant’s petition was untimely filed. Therefore, unless
Appellant can demonstrate an exception entitling him to relief, his petition is untimely and
the trial court was without jurisdiction to consider it. See R.C. 2953.23(A)(1)(a)-(b).
         {¶13} Upon review, Appellant fails to demonstrate an exception for the delay
under R.C. 2953.23. Appellant does not establish that he was unavoidably prevented
from discovery of the facts upon which he bases his claims or that there is a new state or
federal right that applies to his situation. See R.C. 2953.23(A)(1)(a).
         {¶14} Appellant’s third pro se petition for postconviction relief identifies the
standard operation procedure file of the laboratory (the “SOP File”) as the critical fact
withheld from him that, if delivered and relied upon, would provide him with an avenue for
postconviction relief under R.C. 2953.23(A)(1)(a). Appellant notes that the SOP File was
not delivered to him upon request. However, Appellant included as an exhibit with his
filing a “Supplemental Discovery” notice filed by the State on May 27, 2010, indicating the
“Laboratory Protocol” was “available [to him] at any time for [his] inspection, copying,
viewing,    etc.”   (5/27/2010   “Supplemental   Discovery”).   Appellant’s   petition    and
accompanying affidavit do not explain what efforts he or his counsel made to actually
inspect, copy, or view the SOP File prior to trial or otherwise indicate how he was
unavoidably prevented from learning its contents between the time he became aware of
its availability for inspection (May 27, 2010) and the commencement of trial (January 4,
2011).
         {¶15} Appellant also does not establish by clear and convincing evidence that, but
for a constitutional error at trial, no reasonable factfinder would have found him guilty of
the offenses of which he was convicted. See R.C. 2953.23(A)(1)(b).
         {¶16} Appellant’s argument in his third pro se petition for postconviction relief
appears to be based on two premises: (1) the State’s failure to disclose the SOP File
violates Brady; and (2) if the SOP File were disclosed, it would have revealed processes
that could have been used in a Daubert hearing as the basis for excluding expert



Case No. 25 MA 0110
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testimony concerning DNA evidence analysis.            Both of these claims rely on the
assumption that the State failed to disclose the SOP File to Appellant. However, as
addressed, the State made the SOP File available for Appellant’s inspection, copying,
and viewing over seven months prior to trial. Appellant’s petition does not describe any
attempts he or his counsel made to actually inspect the SOP File to support his assertion
that it was withheld from them within the context of Brady. Appellant fails to show how
the SOP File would have led to his exoneration.
       {¶17} Thus, Appellant’s third pro se petition for postconviction relief does not meet
the exceptions for an untimely petition set forth in R.C. 2953.23, and as a result, the trial
court was without jurisdiction to consider the claims raised within.        As stated, even
assuming arguendo that Appellant’s petition was timely filed or that it satisfied R.C.
2953.21 or 2953.23, the petition failed to state substantive grounds for relief. Also,
Appellant’s claims were raised or could have been raised on direct appeal or in his prior
petitions for postconviction relief. They are, therefore, barred by res judicata. See Perry,
10 Ohio St.2d at 180-181.
       {¶18} Because Appellant’s third pro se petition was untimely filed, no exception
entitling him to relief was demonstrated, his claims are barred by principles of res judicata,
and there are additionally no substantive, supporting grounds, the trial court did not abuse
its discretion in reviewing his motion as a petition for postconviction relief and dismissing
it without a hearing.
       {¶19} Appellant’s first, second, and third assignments of error are without merit.

                                      CONCLUSION

       {¶20} For the foregoing reasons, Appellant’s assignments of error are not well-
taken. The November 5, 2025 judgment of the Mahoning County Court of Common Pleas
dismissing without a hearing Appellant’s untimely third pro se petition for postconviction
relief, captioned “Motion for leave to file a motion for a new trial pursuant to C.R. 33B,”
which cited to and relied on R.C. 2953.21, “Petition for postconviction relief; discovery,”
is affirmed.




Case No. 25 MA 0110
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Waite, P.J., concurs.

Hanni, J., concurs.




Case No. 25 MA 0110
[Cite as State v. Smith, 2026-Ohio-1531.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be taxed
 against the Appellant.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.