State v. Marcum

1

2023-Ohio-4058

STATE OF OHIO Appellee v. JOSHUA MARCUM Appellant

C. A. No. 29823

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2023

Criminal Appeal from Common Pleas Court Trial Court Case No 2021 CR 01947

JOSHUA MARCUM, Pro Se Appellant

MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee

OPINION

EPLEY J.

{¶ 1} Joshua Marcum, pro se, appeals from the trial court's denial of his petition for postconviction relief. He claims that the trial court erred in determining that his petition was untimely, in permitting the State to file an untimely response, and in rejecting his Brady claim without a hearing. For the following reasons, the trial court's judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} We previously detailed the evidence presented at Marcum's jury trial. See State v. Marcum, 2022-Ohio-3576, 198 N.E.3d 599, ¶ 3-27 (2d Dist.). To summarize, on June 11, 2021, Marcum and the complainant, to whom we referred as Jane Doe in Marcum's direct appeal, met through the Facebook dating app. That day, they exchanged several messages and had two video chats. According to Doe, she invited Marcum to her residence in Fairfield, Ohio, and he arrived around midnight. Doe was already tipsy. When Marcum stated he needed to buy something to drink, Doe suggested a nearby gas station and accompanied him there. While at the gas station, Marcum slipped methamphetamine into a bottle of Smirnoff and handed it to Doe. Doe testified that everything became foggy for her soon after. Marcum transported Doe to a residence in Trotwood where, in a partially-furnished detached garage, he tied her hands and raped her vaginally, anally, and orally.

{¶ 3} Testifying on his own behalf, Marcum stated that he and Doe had made plans to go to his place in Trotwood while they were video chatting. He asserted that Doe ingested the methamphetamine voluntarily during sex, and that they engaged in vaginal, anal, and oral sex consensually. Marcum denied kidnapping or raping Doe or forcing her to do anything.

{¶ 4} In October 2021, a jury found Marcum guilty of two counts of rape (substantially impaired victim), both first-degree felonies, and one count of gross sexual imposition (substantially impaired victim), a third-degree felony. It acquitted Marcum of two additional counts of rape (force or threat of force), one additional count of gross sexual imposition (force or threat of force) and three counts of kidnapping. At sentencing, the trial court imposed two consecutive prison sentences of a minimum of 10 years and a maximum of 15 years for the rapes and a 60-month prison for gross sexual imposition, to be served consecutively to the rape sentences. Marcum was designated a Tier III sex offender for the rapes and a Tier I sex offender for the gross sexual imposition.

{¶ 5} Marcum appealed from his convictions, claiming that he was denied a fair trial and received ineffective assistance of counsel when his trial counsel failed to object to the testimony of a firefighter/paramedic, who commented on Doe's veracity, and to the State's reference to this testimony in its closing statement. Upon review, we affirmed Marcum's convictions. Marcum, 2022-Ohio-3576, 198 N.E.3d 599. Marcum also filed an application for reopening, seeking to challenge his convictions based on the sufficiency and manifest weight of the evidence. We denied that application as well. Order (Feb. 23, 2023). The Ohio Supreme Court declined to accept his appeals from our rulings. State v. Marcum, 170 Ohio St.3d 1419, 2023-Ohio-1507, 208 N.E.3d 851 (direct appeal); State v. Marcum, 170 Ohio St.3d 1442, 2023-Ohio-1830, 210 N.E.3d 551 (Table) (reopening).

{¶ 6} On January 23, 2023, Marcum filed a "petition to vacate or set aside judgment of conviction and sentence" in the trial court. He asserted that the State took custody of his black iPhone 11 when he was arrested on June 13, 2021, and that he informed several law enforcement officers that his phone contained text messages between him and Doe. Marcum argued that the State committed a Brady violation by failing to provide him the text messages from his phone, which he claimed were exculpatory and relevant to impeach Doe's trial testimony. Marcum attached affidavits from himself, his trial attorney, and the individual who retrieved his cell phone after his conviction, as well as screenshots of messages reportedly between him and Doe and a copy of an email from his trial counsel to him.

{¶ 7} The trial court ordered the State to respond to Marcum's petition by April 28, 2023, and Marcum had until May 19, 2023 to file a reply memorandum. Marcum moved to quash the court's scheduling order on the ground that the court lacked statutory authority to set a briefing schedule; he asserted that the State was required to respond within 10 days of the filing of his petition, pursuant to R.C. 2953.21(E). The State filed its response to the petition on April 27, 2023. Marcum moved to strike the alleged untimely filing.

{¶ 8} On May 26, 2023, the trial court denied the petition for postconviction relief. It held that Marcum's petition was untimely and that Marcum did not show that he was unavoidably prevented from discovering the facts upon which he relied. The court further concluded that, even if the petition were timely, it nevertheless lacked merit. The court stated that "nothing in the text messages constitutes new evidence that is material to the defendant's guilt or innocence in this case." In addition, the court found no evidence that the text messages were suppressed by the State and that there was no reasonable probability that, had they been disclosed to the defense, the jury's verdict would have been different.

{¶ 9} Marcum appeals from the trial court's judgment, raising three assignments of error. We will address them in an order that facilitates our analysis.

II. Timeliness of Marcum's Petition for Postconviction Relief

{¶ 10} In his second assignment of error, Marcum claims that the trial court erred in concluding that his petition was untimely. Specifically, he asserts that he was unavoidably prevented from submitting a timely petition due to his appellate counsel's delay in providing him a copy of the trial transcript. We agree with Marcum that his petition was timely, albeit not for the reason he advances.

{¶ 11} A petition for postconviction relief "is a means by which the petitioner may present constitutional issues to the court that would otherwise be impossible to review because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction." State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 14 (2d Dist), quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391, ¶ 37 (10th Dist). "A postconviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment." State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48.

{¶ 12} When a defendant has pursued a direct appeal of his or her conviction, as Marcum has, a petition for postconviction relief must be filed no later than 365 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." R.C. 2953.21(A)(2). Trial courts lack jurisdiction to consider an untimely or successive petition for postconviction relief unless the untimeliness is excused under R.C. 2953.23(A). State v. Taylor, 2021-Ohio-1670, 170 N.E.3d 1310, ¶ 38 (2d Dist.), citing State v. Current, 2d Dist. Champaign No. 2012-CA-33, 2013-Ohio-1921, ¶ 16.

{¶ 13} A court may consider an untimely petition if both of the following apply: (1) the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim, or the United State Supreme Court has recognized a new federal or state right that applies retroactively, and (2) the petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty. R.C. 2953.23(A)(1). "Each of these showings is a jurisdictional requirement and both must be met before a trial court may consider an otherwise-untimely petition for post-conviction relief." State v. Moody, 2d Dist. Montgomery No. 27737, 2018-Ohio-2561, ¶ 4.

{¶ 14} Here, the transcripts of Marcum's jury trial and sentencing hearing were filed in Marcum's direct appeal on January 19, 2022; the clerk of court issued an App.R. 11 (B) notice that day. See State v. Marcum, 2d Dist. Montgomery No. 29300. On March 21, 2022, appellate counsel for Marcum filed a motion for an extension of time to file his appellate brief, citing in part that jury selection had not been transcribed; the praecipe to the court reporter had expressly requested that voir dire be included. We granted the extension, and the transcript of voir dire was filed on April 13, 2022. The clerk promptly issued an amended App.R. 11 (B) notice.

{¶ 15} The trial court found that Marcum's petition was untimely, reasoning that the written transcripts were filed on January 19, 2022, and the petition was filed more than 365 days later. However, we have held that the term "trial transcript" as used in R.C. 2953.21(A)(2) means those transcripts that are objectively necessary for inclusion in the appellate record. See State v. Deaton, 2019-Ohio-2128, 137 N.E.3d 696, ¶ 14-15 (2d Dist.). A transcript of voir dire - part of the trial itself - satisfies that standard. See id. The fact that Marcum ultimately did not raise on direct appeal any issues regarding jury selection is irrelevant. Id. at ¶ 15.

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