State v. Kaufhold , 2021 Ohio 4539 ( 2021 )

[Cite as State v. Kaufhold, 2021-Ohio-4539.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-03-021
: OPINION
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:
DAVID T. KAUFHOLD, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2018-11-2011
Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.
Santen & Hughes, and H. Louis Sirkin, and John D. Holschuh III, for appellant.
BYRNE, J.
{¶1} Appellant, David Kaufhold, appeals the decision of the Butler County Court of
Common Pleas denying his petition for postconviction relief. For the reasons detailed
below, we affirm the trial court's denial of Kaufhold's petition.
I. Factual and Procedural Background
{¶2} Kaufhold, a 61-year-old man, met P.C., a 58-year-old woman, through an
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online dating service.1 After becoming acquainted, they decided to go on a first date at
B.J.'s Restaurant and Brewhouse in Springdale, Ohio. P.C. arrived over 30 minutes early
and ordered a margarita and an appetizer. When Kaufhold arrived, he ordered her another
drink and then another even before she finished her second. P.C. initially refused the third
drink, telling Kaufhold "I feel really woozy right now." Kaufhold told her to keep drinking the
third drink, saying "drink this," "[y]ou've got to drink this," and "[h]ave a sip, you have to drink
this one." Feeling pressured by Kaufhold, P.C. stated that she ended up taking a few sips
of the third margarita. She stood up and told Kaufhold "I don't feel good." P.C. testified that
she then blacked out.
{¶3} P.C.'s next recollection was Kaufhold on top of her as she was face down on
a mattress in what she later learned was Kaufhold's bedroom. P.C. testified that she felt
"just terrible" and felt excruciating pain in her vagina and anus. She told Kaufhold "to get
off [her]." P.C. then went to the bathroom to compose herself. She struggled to get dressed
in the bathroom and struggled to walk. When she reentered the bedroom she "just fell back
on the bed." Kaufhold told her to leave, stating "oh no. You are not staying here. You are
going home."
{¶4} Kaufhold helped P.C. up from the mattress and escorted her outside to his
truck where she "passed out again." The next thing she remembered was Kaufhold
dropping her off at B.J.'s Restaurant and Brewhouse, where her car was still in the parking
lot. P.C. attempted to call her niece, but she accidentally dialed her son's number. When
he answered, P.C. told him that she had been raped. Since P.C. was driving her car during
this conversation, her son and his wife implored her to pull over so they could assist her.
1. This is the second time this case has been appealed to our court. See State v. Kaufhold, 12th Dist. Butler
No. CA2019-09-148, 2020-Ohio-3835. Our previous decision discusses the case's facts in significantly more
detail than is necessary in this opinion.
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P.C. eventually pulled into a parking lot and passed out again. When P.C.'s son arrived, he
had to physically pull her from her car, threw her over his shoulder, and transported her to
a hospital. She passed out again.
{¶5} After arriving at the hospital, P.C. was examined by a Sexual Assault Nurse
Examiner ("SANE nurse"). The SANE nurse documented pronounced injuries to P.C.'s
genital areas, including lacerations, bruising, swelling, and bleeding. There was also
testimony that P.C. was "drowsy" and "very sleepy." A toxicologist later reported that P.C.'s
blood alcohol content was well over the legal limit based on a sample taken during P.C.'s
hospital visit.
{¶6} P.C. reported the incident to authorities. P.C. also retained an attorney and
private investigator and filed a civil lawsuit against Kaufhold. Kaufhold was later indicted
on one count of rape and one count of sexual battery.
{¶7} The matter proceeded to a four-day jury trial where the jury heard testimony
from 13 witnesses. This included testimony from Kaufhold, P.C., P.C.'s son, P.C.'s
daughter-in-law, two nurses who treated P.C. for her injuries, the state's expert witness,
and the chief toxicologist with the Hamilton County Coroner's Office. After hearing this
testimony, the jury returned a verdict finding Kaufhold guilty as charged on both the rape
and sexual battery offenses.
{¶8} Kaufhold filed a direct appeal. We affirmed Kaufhold's conviction and
sentence. State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 67.
The Ohio Supreme Court declined review. 11/24/2020 Case Announcements, 2020-Ohio-
5332.
{¶9} On October 5, 2020, Kaufhold filed a petition for postconviction relief.
Following review, the trial court denied Kaufhold's petition. Kaufhold now appeals the denial
of the petition, raising two assignments of error for review.
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II. Law and Analysis
{¶10} Assignment of Error No. 1:
{¶11} THE COURT ERRED IN FAILING TO GRANT APPELLANT AN
EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.
{¶12} In his first assignment of error, Kaufhold argues the trial court erred by denying
his petition for postconviction relief without an evidentiary hearing. We find no merit to
Kaufhold's argument.
A. Postconviction Relief, Standard of Review, and Res Judicata
{¶13} A postconviction proceeding is not an appeal of a criminal conviction, but
rather, a collateral civil attack on a criminal judgment. State v. Berrien, 12th Dist. Clinton
No. CA2015-02-004, 2015-Ohio-4450, ¶ 8. To prevail on a petition for postconviction relief,
the petitioner must establish a violation of his constitutional rights that renders the judgment
of conviction "void or voidable." R.C. 2953.21(A)(1)(a)(i). A petition for postconviction relief
does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the
petitioner automatically entitled to an evidentiary hearing. State v. Rose, 12th Dist. Butler
No. CA2012-03-050, 2012-Ohio-5957, ¶ 16. Under 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 (1999), paragraph two
of the syllabus.
{¶14} "In reviewing an appeal of postconviction relief proceedings, this court applies
an abuse of discretion standard." State v. Vore, 12th Dist. Warren Nos. CA2012-06-049
and CA2012-10-106, 2013-Ohio-1490, ¶ 10. "The term abuse of discretion connotes more
than an error of law or of judgment; it implies that the court's attitude is unreasonable,
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arbitrary or unconscionable." State v. Thornton, 12th Dist. Clermont No. CA2012-09-063,
2013-Ohio-2394, ¶ 34. A trial court "does not abuse its discretion in dismissing a [petition
for postconviction relief] without an evidentiary hearing if (1) the petitioner fails to set forth
sufficient operative facts to establish substantive grounds for relief, or (2) the operation of
res judicata prohibits the claims made in the petition." State v. Myers, 12th Dist. Warren
No. CA2019-07-074, 2021-Ohio-631 at ¶ 18, citing State v. Maxwell, 8th Dist. Cuyahoga
No. 107758, 2020-Ohio-3027, ¶ 25.
{¶15} "It is well-established that a trial court may dismiss a postconviction relief
petition on the basis of the doctrine of res judicata." State v. Davis, 12th Dist. Butler No.
CA2012-12-258, 2013-Ohio-3878, ¶ 30. "Under res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from raising and litigating in
any proceeding except an appeal from 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 or conviction, or on an appeal from that judgment." State v. Myers,
12th Dist. Warren No. CA2019-07-074, 2021-Ohio-631, ¶ 16, citing State v. Wagers, 12th
Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 10 and State v. Szefcyk, 77 Ohio St.
3d 93, syllabus. "Res judicata bars a petitioner from 're-packaging' evidence or issues that
either were or could have been raised in trial or on direct appeal." State v. Casey, 12th
Dist. Clinton No. CA2017-08-013, 2018-Ohio-2084, ¶ 15, citing State v. Rose, 12th Dist.
Butler No. CA2012-03-050, 2012-Ohio-5957, ¶ 20.
{¶16} "The presentation of competent, relevant, and material evidence outside the
record may defeat the application of res judicata." Myers at ¶ 17, citing State v. Lawson,
103 Ohio App. 3d 307, 315 (12th Dist. 1995). "The evidence submitted with the petition
cannot be merely cumulative of or alternative to evidence presented at trial." Id., citing
State v. Jackson, 8th Dist. Cuyahoga No. 104132, 2017-Ohio-2651, ¶ 16. "To overcome
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the res judicata bar, evidence outside the record must demonstrate that the petitioner could
not have appealed the constitutional claim based upon information in the original record."
Id., citing State v. Piesciuk, 12th Dist. Butler No. CA2013-01-011, 2013-Ohio-3879, ¶ 18.
"If evidence outside the record is 'marginally significant' and does not advance the
petitioner's claim beyond a mere hypothetical and a desire for further discovery, res judicata
still applies to the claim." Id., quoting State v. Cowans, 12th Dist. Clermont No. CA98-10-
090, 1999 Ohio App. LEXIS 4157, *8-9 (Sept. 7, 1999). Stated another way, "'[e]vidence
presented outside the record must meet some threshold standard of cogency.'" State v.
Statzer, 12th Dist. Butler No. CA2017-02-022, 2018-Ohio-363 at ¶ 16, quoting Lawson at
315.
B. Ineffective Assistance of Counsel
{¶17} Claims of ineffective assistance of counsel are constitutional in nature. A
convicted defendant alleging ineffective assistance of counsel must demonstrate that (1)
defense counsel's performance was so deficient that he or she was not functioning as the
"counsel" guaranteed under the Sixth Amendment to the United States Constitution, and
(2) that defense counsel's errors prejudiced the defendant, depriving him or her of a trial
with a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984).
To be entitled to a hearing on an ineffective assistance of counsel claim in a petition for
postconviction relief, the petitioner bears the initial burden of submitting evidentiary
materials containing sufficient operative facts which, if believed, would establish defense
counsel had substantially violated at least one of a defense attorney's essential duties to
his client and that the defendant was prejudiced as a result. State v. Koch, 12th Dist. Butler
No. CA2018-08-158, 2019-Ohio-591, ¶ 14.
C. Analysis of Kaufhold's Arguments
{¶18} Kaufhold contends that he is entitled to postconviction relief because he
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received ineffective assistance of counsel. First, Kaufhold argues that his trial counsel was
ineffective for failing to investigate or consult an expert to challenge the SANE nurse who
testified at trial. Second, he argues that his counsel was ineffective for failing to investigate
DNA evidence in the victim's underwear and for failing to investigate the victim's "financial
background." Third, he argues that his rights to effective assistance of counsel, equal
protection, and due process rights, as well as his rights under the Americans with
Disabilities Act, were violated when he was called to testify without hearing assistance.
1. Failure to Investigate Expert to Challenge SANE Nurse
{¶19} During trial, the state presented evidence from a SANE nurse who examined
P.C. on the night of her date with Kaufhold. The SANE nurse testified that P.C. presented
to the hospital with high levels of pain in her vaginal and anal areas. The SANE nurse
explained that P.C. had various lacerations, bruising, swelling, and bleeding. The SANE
nurse described the injuries as not the result of "normal intercourse." Rather, she stated
that the intercourse would need to be "pretty rough" and also mentioned "I don't think that
anybody even having rough intercourse could do that."
{¶20} In his motion for postconviction relief, Kaufhold argued that his trial counsel
was ineffective for failing to investigate or consult with a medical expert for the purpose of
challenging the SANE nurse's testimony. Specifically, Kaufhold described P.C. as a "post-
menopausal female" and argued that such an expert should have been used to determine
whether P.C. "could have suffered the injuries she alleged through consensual sexual
intercourse." Kaufhold then argues that the "failure to investigate the physical effects of sex
on post-menopausal women or consult with a medical expert about [the SANE nurse's]
testimony * * * fell below an objective standard of reasonableness." In support, Kaufhold
submitted no new evidence other than an affidavit from his trial counsel that stated:
3. During that trial, the State presented testimony from SANE
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nurse Amelia Rivers.
4. Prior to trial, I did not consult with or engage an independent
SANE nurse or an Ob/gynecologist to assist in Mr. Kaufhold's
defense.
5. I did not consult with or utilize an independent SANE nurse or
an Ob/gynecologist regard nurse Rivers' report.
{¶21} The trial court held that Kaufhold's failure-to-investigate argument could have
been raised on direct appeal and was therefore barred by res judicata. The trial court also
determined that Kaufhold had not established substantive grounds for postconviction relief.
{¶22} Kaufhold argues that the trial court erred in applying res judicata because no
evidence regarding his trial counsel's investigation prior to trial was presented at trial or was
available during his direct appeal. It is true that the three sentences quoted above from
Kaufhold's trial counsel's affidavit were evidence that was not presented at trial or during
Kaufhold's direct appeal. However, these three sentences demonstrate less than Kaufhold
asserts. Kaufhold's trial counsel did not actually state in his affidavit that he did not consider
potential experts to rebut the state's SANE nurse witness. Instead, he simply stated that
prior to trial he did not "consult with or engage an independent SANE nurse or
Ob/gynecologist." He did not state whether he considered retaining such experts, or
whether he considered, consulted with, or engaged an expert other than an independent
SANE nurse or obstetrician/gynecologist. In other words, trial counsel's affidavit is quite
limited. We therefore conclude that, even if the statements in Kaufhold's trial counsel's
affidavit constitute evidence outside the record, the evidence does not meet the threshold
standard of cogency necessary to bar application of res judicata. Statzer, 2018-Ohio-363at ¶ 16.
{¶23} Even if the trial court had improperly applied res judicata to Kaufhold's
argument regarding his trial counsel's failure to investigate an expert to testify contrary to
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the SANE nurse, we find the trial court did not abuse its discretion by rejecting Kaufhold's
argument on the merits. We have previously held that a petitioner was not entitled to
postconviction relief where his trial counsel failed to obtain a medical expert. State v. B.J.T.,
12th Dist. Warren No. CA2018-06-062, 2019-Ohio-1049, ¶ 18. In that case, the 15-year-
old victim reported that she had been sexually abused over a period of approximately eight
months. Id. at ¶ 2. On appeal, the petitioner alleged that his counsel was ineffective for
failing to obtain a medical expert. Id. at ¶ 14. We rejected that argument because
"[p]hysical injury was not required, nor would the lack of physical injury be necessarily
probative in light of the allegations." Id. at ¶ 18.
{¶24} In this case, the state alleged that Kaufhold engaged in sexual conduct with
P.C. when he knew or had reasonable cause to believe that her ability to resist or consent
to sexual conduct was substantially impaired because of her mental or physical condition.
Kaufhold did not dispute that he engaged in sexual conduct with P.C. In fact, Kaufhold
admitted that he had sexual intercourse with P.C. multiple times the evening of their date
and asserted that it was consensual. Therefore, the issue before the jury was not whether
P.C had been forcibly raped, but rather whether Kaufhold had sexual conduct with P.C.
while her ability to resist or consent was substantially impaired. The jury ultimately
answered that question in the affirmative and found Kaufhold guilty.
{¶25} In both his petition for postconviction relief and in his argument on appeal,
Kaufhold fails to identify how the testimony of another SANE nurse or expert would have
undermined the state's evidence. As correctly determined by the trial court, Kaufhold's
argument merely invites speculation into what another hypothetical expert could have
uncovered. This court will not engage in speculation that ultimately has no bearing on the
issue presented to the jury. We have held that when a defendant's "argument that a
defense expert was necessary to impeach the opinions and methods of the examiner is
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purely speculative," and the defendant "fails to identify the expert witness who should have
been called or what the expert would have said," the defendant fails to establish ineffective
assistance of counsel" because "this court has no way of knowing how an expert would
have aided [the defendant's] defense." State v. Long, 12th Dist. Warren No. CA2021-02-
014, 2021-Ohio-3651, ¶ 41. Furthermore, "[i]t is well settled that declining to call an expert
and opting to rely on cross-examination * * * does not amount to ineffective assistance of
counsel." Id. at ¶ 42. Such is exactly the case here where Kaufhold has not identified a
potential expert and, as the trial court pointed out, there is no way of knowing how an
unidentified expert may have testified, including whether the testimony would have even
supported Kaufhold's position. Kaufhold has not "set forth sufficient operative facts to
establish substantive grounds for relief." Calhoun, 86 Ohio St. 3d 279 at paragraph two of
the syllabus. Accordingly, we find Kaufhold's first argument is without merit.
2. Failure to Investigate DNA Evidence and P.C.'s "Financial Background"
{¶26} Kaufhold next argues that his counsel was ineffective for failing to investigate
DNA evidence in the victim's underwear and for failing to investigate P.C.'s "financial
background." The trial court found that both arguments were barred by res judicata, as well
as on the merits. We agree.
{¶27} With respect to Kaufhold's argument that his counsel failed to investigate an
unknown male's DNA found in P.C.'s underwear, we previously addressed this exact issue
in Kaufhold's direct appeal. Kaufhold, 2020-Ohio-3835 at ¶ 38, 60. As it relates to DNA
evidence found on P.C.'s underwear, in Kaufhold's direct appeal we stated:
Kaufhold finally argues that he received ineffective assistance
when his trial counsel failed to "investigate or even inquire
about" the DNA of an unknown male found in P.C.'s underwear.
But, when considering Kaufhold admitted to having sex with
P.C., the fact that the DNA of an unknown male was found in
P.C.'s underwear was not pertinent to his trial counsel's trial
strategy that, as noted above, (1) the sex was consensual or (2),
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if not consensual, that there was no evidence to indicate
Kaufhold either knew or had reasonable cause to believe P.C.'s
ability to resist or consent was substantially impaired. "[T]rial
strategy, even debatable strategy, is not a basis for finding
ineffective assistance of counsel." Therefore, Kaufhold's claim
that he received ineffective assistance when his counsel failed
to "investigate or even inquire about" the DNA of an unknown
male found in P.C.'s underwear lacks merit. Accordingly, finding
no merit to any of the arguments raised by Kaufhold herein,
Kaufhold's fourth assignment of error is overruled.
(Citations omitted.) Id. at ¶ 60. As such, the doctrine of res judicata bars Kaufhold's claim
as it was already raised on direct appeal. State v. Blankenburg, 12th Dist. Butler No.
CA2012-04-088, 2012-Ohio-6175 at ¶ 10 (arguments that were raised on direct appeal are
barred by res judicata).
{¶28} Even if this argument were not barred by res judicata, it would also fail
because Kaufhold has offered no new evidence in support of his argument. Thornton, 2013-
Ohio-2394 at ¶ 34 (trial court does not abuse its discretion when it denies petition for
postconviction relief because petitioner fails to set forth sufficient operative facts to establish
substantive grounds for relief). In fact, Kaufhold's previous counsel's affidavit is silent
regarding the investigation he did or did not perform regarding the male DNA in P.C.'s
underwear.
{¶29} As to Kaufhold's argument that his trial counsel was ineffective for failing to
investigate potentially relevant financial information about liens or alleged financial
difficulties of the victim, this court – again, in Kaufhold's direct appeal – noted that Kaufhold's
trial counsel had questioned the victim about her finances to the full extent that he intended.
Kaufhold at ¶ 38. We concluded that Kaufhold was not deprived of the right to confront his
accuser, nor was his ability to present his defense fundamentally impaired. Id. Instead, we
noted:
The record instead indicates that Kaufhold did exactly what he
intended to do with this line of questioning; i.e., imply that P.C.
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had made up the allegations against him in hopes that she
would receive a significant financial payout.
Id.{¶30} Kaufhold fails to identify any meritorious reason why his trial counsel's failure
to investigate potentially relevant financial information could not have been raised on direct
appeal when trial counsel specifically asked questions of P.C. at trial that were intended to
elicit answers regarding her financial motivations. See, e.g., State v. Mathes, 12th Dist.
Clermont No. CA2013-02-014, 2013-Ohio-4128, ¶ 15 (failure to discover incident report and
use it to impeach victim should have been raised on direct appeal when incident report was
known prior to direct appeal). From the record it is clear that Kaufhold's trial counsel was
aware of information about P.C.'s finances and did raise this line of questioning with P.C.
for impeachment purposes. Kaufhold's argument on appeal is merely a reformulation of
arguments that were rejected previously. State v. West, 12th Dist. Butler No. CA2018-09-
183, 2019-Ohio-4826, ¶ 20 (petitioner cannot "re-package" evidence or issues that were or
could have been raised in trial or direct appeal).
{¶31} In fact, Kaufhold offered no new evidence whatsoever with respect to P.C.'s
liens and financial problems that would support his request for postconviction relief. In
particular, Kaufhold's previous counsel's affidavit is silent regarding P.C.'s liens and alleged
financial difficulties. Nor did Kaufhold's trial counsel state in his affidavit that he failed to
investigate P.C.'s liens or financial problems. Accordingly, this argument is also barred by
application of res judicata. Blankenburg, 2012-Ohio-6175 at ¶ 10. Even if it were not barred
by res judicata, Kaufhold's failure to point to any evidence establishing substantive grounds
for relief would be fatal to his request for postconviction relief on this issue. Thornton, 2013-
Ohio-2394 at ¶ 34.
{¶32} For all of these reasons the trial court did not abuse its discretion in denying
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Kaufhold's petition for postconviction relief with respect to his arguments regarding his trial
counsel's alleged failure to investigate the unknown male's DNA in P.C.'s underwear and
P.C.'s liens and financial problems.
3. Failure Regarding Hearing Assistance
{¶33} Finally, Kaufhold argues that his trial counsel was ineffective for failing to
advise him of his right to hearing assistance. The record reflects that Kaufhold does have
a hearing impairment. As relevant here, the trial transcript clearly indicates that Kaufhold
was wearing hearing aids during trial:
KAUFHOLD'S TRIAL COUNSEL: And you have some problems
with your hearing occasionally, right?
KAUFHOLD: Yeah, if you raise your voice a little bit, I - -
KAUFHOLD'S TRIAL COUNSEL: No problem.
KAUFHOLD: Okay.
KAUFHOLD'S TRIAL COUNSEL: And you have a hearing aid
in?
KAUFHOLD: Yeah, they're in.
{¶34} Kaufhold suggests that his trial counsel was unaware of certain
accommodations that could have been made as a result of his hearing impairment.
Kaufhold further argues that "subjecting [him] to cross-examination without hearing
assistance violated [his] rights to due process and to equal protection." As part of his
petition for postconviction relief, Kaufhold attached an affidavit from his trial counsel that
averred "[d]uring trial, it became clear that Mr. Kaufhold was suffering from hearing
difficulties. This was especially clear during his testimony as part of my case in chief."
{¶35} The trial court rejected Kaufhold's argument regarding hearing assistance
based on Kaufhold's failure to "demonstrate operative facts to establish substantive
grounds for relief." Following review, we find that the trial court did not abuse its discretion.
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Kaufhold has not demonstrated that he received ineffective assistance of counsel with
respect to his hearing impairment and has provided no basis for an evidentiary hearing.
There is no evidence in the record suggesting that Kaufhold was actually unable to
adequately hear in the courtroom or that he suffered any prejudice. On the contrary,
Kaufhold stated at trial that he was wearing his hearing aids, asked his counsel to speak
up, and then stated "okay" after his trial counsel next spoke. Further, Kaufhold's trial
counsel's affidavit does not state that he was unaware of the potential accommodations of
which Kaufhold now claims his trial counsel was unaware. Kaufhold has not pointed to
operative facts establishing substantive grounds for postconviction relief with respect to his
alleged hearing difficulties.
{¶36} Having thoroughly reviewed the record, we find the trial court did not abuse
its discretion by denying Kaufhold's petition for postconviction relief. Kaufhold's first
assignment of error is overruled.
{¶37} Assignment of Error No. 2:
{¶38} THE COURT ABUSED ITS DISCRETION IN FAILING TO RESPOND TO
MR. KAUFHOLD'S REQUEST FOR ADDITIONAL TIME TO PRESENT EVIDENCE.
{¶39} In his second assignment of error, Kaufhold argues the trial court erred by
failing to respond to his request for additional time to present evidence. As noted above,
Kaufhold filed his petition for postconviction relief on October 5, 2020. In that petition,
Kaufhold also requested that he be provided 30 additional days to submit evidence in
support. The trial court did not address Kaufhold's request and instead denied his petition
in a written entry.
{¶40} R.C. 2953.21 provides for the filing of petitions for postconviction relief and
sets forth procedures with respect to those petitions. That statute provides that such
petitions must be filed no later than 365 days after the date on which the trial transcript is
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filed with the court of appeals in the direct appeal, or, if a direct appeal was not pursued,
365 days after the expiration of the time in which a direct appeal could have been filed. R.C.
2953.21(A)(2). A different statute, R.C. 2953.23(A)(1)(a), permits a trial court to entertain
an untimely petition so long as the petitioner demonstrates either: (1) he was unavoidably
prevented from discovering the facts necessary for the claim for relief, or (2) the United
States Supreme Court has recognized a new federal or state right that applies retroactively
to persons in the petitioner's situation and petitioner asserts a claim based on that right.
State v. Hake, 12th Dist. Preble No. CA2018-08-011, 2019-Ohio-1402, ¶ 14.
{¶41} In the present case, the transcript was filed with this court in the direct appeal
on October 4, 2019, and Kaufhold filed his petition for postconviction relief on October 5,
2020. As the day prior was a Sunday, his petition was timely. Though he suggests that the
trial court erred in the handling of his request for a continuance for additional time to present
evidence in support of his postconviction relief petition, Kaufhold's request was more
accurately framed as a request for permission to file an untimely petition for postconviction
relief. That is, Kaufhold argues the trial court should have permitted him an additional 30
days to "submit factual evidence" on a matter that would otherwise be classified as an
untimely petition.
{¶42} Based on our review, we find the trial court did not err by denying Kaufhold's
petition without granting any extension of time to submit additional evidence. Kaufhold does
not allege that he satisfied either of the two conditions contained in R.C. 2953.23(A)(1)(a)
or (b). Instead, he argues that his statutory deadline should be extended because of the
COVID-19 pandemic. However, the deadline set forth in R.C. 2953.21(A)(2) is statutory
and jurisdictional. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, ¶ 41.
Kaufhold has not satisfied the statutory conditions to entertain an untimely petition and his
unspecific reference to "difficulties posed by the COVID-19 emergency" is unavailing.
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Kaufhold's second assignment of error is without merit and is hereby overruled.
{¶43} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
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