[Cite as State v. Keith, 2026-Ohio-3286.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
CASE NO. 9-25-27
PLAINTIFF-APPELLEE,
v.
CHRISTOPHER KEITH, JR., OPINION AND
JUDGMENT ENTRY
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
General Division
Trial Court No. 2021-CR-0146
Judgment Affirmed
Date of Decision: August 24, 2026
APPEARANCES:
Christopher Keith, Jr., Appellant
Allison M. Kesler for Appellee
Case No. 9-25-27
MILLER, J.
{¶1} Defendant-appellant, Christopher Elan Keith, Jr. (“Keith”), appeals the
September 23, 2025 judgment of the Marion County Court of Common Pleas
denying his petition for postconviction relief. For the reasons that follow, we affirm.
{¶2} The cases arises from the April 2, 2021 traffic stop in which a Marion
Police Officer observed a plastic bag containing white powder in Keith’s vehicle,
which later tested positive for 27.93 grams of methamphetamine.
{¶3} On April 7, 2021, Keith was indicted by the Marion County Grand jury
on a count of aggravated possession of drugs in violation of R.C. 2925.11(A)(1), a
second-degree felony.1
{¶4} The trial court appointed counsel to represent Keith on April 12, 2021.
On May 3, 3021, the State filed its Response to Discovery, indicating it had provided
“DVD – Officers B. Thomas, Barber, and Cochell’s body camera videos.” Keith’s
trial counsel withdrew from representation on September 28, 2021. The trial court
appointed replacement counsel for Keith on October 5, 2021. On November 2,
2021, the State filed an Identification of Discovery Provided indicating it had
produced “Bodycams/Dash cam” to Keith’s replacement counsel.
1
In Keith’s direct appeal from his convictions and sentence, this court recited much of the factual and procedural background of this case, and we will not duplicate those efforts here. See State v. Keith, 2023-Ohio-3428 (3d Dist.).
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{¶5} A jury trial was held on April 7-8, 2022. At the trial, the State
introduced approximately 12 minutes of Officer Thomas’s body-worn camera
footage (State’s Exhibit 2) which the State explicitly described as “a portion” of
Thomas’s body-worn camera recording. At the conclusion of the trial, the jury
found Keith guilty as charged. The trial court sentenced Keith to an indeterminate
prison term of eight to twelve years of incarceration.
{¶6} Keith filed a direct appeal wherein he raised two assignments of error,
including a challenge to the effectiveness of his trial counsel. He argued that his
trial counsel was ineffective for (1) failing to object to the State’s using redirect
examination to establish venue; (2) failing to request a jury instruction regarding the
jury’s consideration of the stipulated polygraph examination; and (3) failing to
request a jury instruction regarding the jury’s consideration of expert testimony.
State v. Keith, 2023-Ohio-3428, ¶ 7, 17 (3d Dist.), appeal not accepted, 2024-Ohio1228. All of the claims Keith raised on direct appeal were unrelated to the bodyworn camera recording. In an opinion issued on September 25, 2023, this Court
overruled his assignments of error and affirmed his conviction and sentence. Id. at
¶ 16, 26-27.
{¶7} On November 3, 2023, Keith filed a motion with this Court for
reopening the case. On November 27, 2023, this Court issued a judgment entry
denying his application for reopening. Keith filed a motion for reconsideration of
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opinion and judgment entry on December 12, 2023. This court denied that request
as well.
{¶8} According to Keith, in November 2024, his sister obtained over 100
minutes of body-worn camera footage from the Marion Police Department through
a public records request. According to his sister’s affidavit, the footage showed
Officer Barber searching Keith’s vehicle approximately three minutes before
Officer Thomas allegedly discovered the drugs.
{¶9} In response to the body-worn camera footage obtained by his sister, on
April 4, 2025, Keith filed a motion for leave to file a motion for a new trial on the
basis of the body-worn camera footage, which Keith claimed was “newly
discovered evidence.” On July 24, 2025, the State filed an affidavit with exhibits
documenting that both of Keith’s prior counsel received the complete body-worn
camera recordings prior to trial. In a judgment entry filed on July 29, 2025, the trial
court denied Keith’s motion for a new trial. The court reasoned that Keith had failed
to establish the presence of “newly discovered evidence” and had not established
that he was unavoidably prevented from discovering said evidence.
{¶10} On September 8, 2025, Keith filed a petition for postconviction relief
arguing that his trial counsel was ineffective for failing to investigate and present
the body-worn camera footage, which Keith contends was exculpatory. Keith
argued that he was unavoidably prevented from discovering this evidence because
he lacked the intellectual and psychological capacity to employ reasonable
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diligence. He submitted an affidavit describing mental health conditions including
manic depression, schizophrenia, ADHD, and anxiety, along with physical ailments
requiring medication he did not consistently receive in jail.
{¶11} On September 23, 2025, the trial court denied Keith’s petition for
postconviction relief citing the court’s lack of jurisdiction due to the untimeliness
of Keith filing the petition. In a detailed and well-reasoned opinion, the court
concluded Keith failed to demonstrate he was unavoidably prevented from
discovering the complete body-worn camera footage because: (1) the public court
docket reflected the State had produced body-worn camera videos from three
officers; (2) the trial transcript explicitly described the 12-minute video as “a
portion” of Officer Thomas’s recording; and (3) Keith knew his arrest lasted
approximately 40 minutes, but only 12 minutes of footage was shown at trial.
{¶12} Keith filed the instant appeal. He raises two assignments of error for
our review.
First Assignment of Error
The trial court erred to the prejudice of petitioner-appellant when
it denied his petition for postconviction relief on 9-23-25 for lack
of jurisdiction after concluding he was unavoidably prevented
from discovering the underlying facts upon which his petition
relied, without considering and resolving evidence in the record
indicating he was not intellectually or psychologically capable of
conducting any level of diligence required.
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Second Assignment of Error
The trial court erred to the prejudice of petitioner-appellant,
abused its discretion, and violated his rights to Fundamental
Fairness, Due Process of Law, and the Effective Assistance of
Counsel, guaranteed by the 5th, 6th, and 14th Amendments to the
United States Constitution when it dismissed the petition for
postconviction relief, without a hearing or briefing, on 9-23-25 for
lack of jurisdiction.
{¶13} Keith raises two assignments of error challenging the trial court’s
determination regarding the lack of jurisdiction to entertain the petition because
Keith failed to demonstrate that he was “unavoidably prevented” from discovering
body-worn camera footage forming the basis of his ineffective assistance of counsel
claims.
Relevant Law
{¶14} “R.C. 2953.21 governs petitions for postconviction relief.” State v.
Wine, 2015-Ohio-4726, ¶ 10 (3d Dist.). The statute sets forth who may petition for
postconviction relief and provides that: “[a]ny person who has been convicted of a
criminal offense . . . and who claims that there was such a denial or infringement of
the person’s rights as to render the judgment void or voidable under the Ohio
Constitution or the Constitution of the United States” “may file a petition in the
court that imposed sentence, stating the grounds for relief relied upon, and asking
the court to vacate or set aside the judgment or sentence or to grant other appropriate
relief.” R.C. 2953.21(A)(1)(a). The statute sets forth the time requirements for
filing a petition for postconviction relief, and provides, in relevant part,
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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[.]
R.C. 2953.21(A)(2). “‘A trial court lacks jurisdiction to entertain an untimely or
successive petition for postconviction relief unless the petitioner establishes that one
of the exceptions in R.C. 2953.23(A) applies.’” State v. Cunningham, 2016-Ohio3106, ¶ 13 (3d Dist.), quoting State v. Chavis, 2015-Ohio-5549, ¶ 14 (10th Dist.).
“Therefore, if the petition has been untimely filed, the trial court cannot consider
the substantive merits of the petition and must summarily dismiss it without
addressing the merits of the petition.” State v. Unsworth, 2015-Ohio-3197, ¶ 16
(6th Dist.), citing State v. Flower, 2015-Ohio-2335, ¶ 12 (7th Dist.) and State v.
Rodriquez, 2015-Ohio-562, ¶ 6 (6th Dist.).
{¶15} However, as indicated, an exception to the jurisdictional time limit is
contained in R.C. 2953.23(A), which states as follows:
(A) Whether a hearing is or is not held on a petition filed pursuant to
[R.C. 2953.21] 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) of this section applies:
(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
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persons in the petitioner’s situation, and the petitioner 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[.]
(2) The petitioner was convicted of a felony, the petitioner is an
offender for whom DNA testing was performed under sections
2953.71 to 2953.81 of the Revised Code or under former section
2953.82 of the Revised Code and analyzed in the context of and upon
consideration of all available admissible evidence related to the
inmate’s case as described in [R.C. 2953.74(D)], and the results of the
DNA testing establish, by clear and convincing evidence, actual
innocence of that felony offense[.]
{¶16} Once a court has determined that a petition is untimely and no
exception applies, no further inquiry into the merits of the case is necessary. See
State v. Morgan, 2005-Ohio-427, ¶ 6 (3d Dist.), citing State v. Beaver, 131 Ohio
App.3d 458 (11th Dist. 1998). Trial courts should dismiss untimely postconviction
petitions for lack of jurisdiction; nevertheless, a trial court does not commit
reversible error by denying an untimely postconviction petition. State v. Hatfield,
2008-Ohio-1377, ¶ 8 (10th Dist.). The trial court determined that Keith failed to
establish an exception to the statutory time limit, and we review that decision under
an abuse of discretion standard. State v. Allen, 2017-Ohio-7976, ¶ 10 (6th Dist.),
citing Unsworth, 2015-Ohio-3197, at ¶ 16 and Rodriguez, 2015-Ohio-562, at ¶ 7.
{¶17} A defendant is “unavoidably prevented” from the discovery of facts if
he had no knowledge of the existence of those facts and could not have, in the
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exercise of reasonable diligence, learned of their existence within the time specified
for filing his petition for postconviction relief. State v. Holnapy, 2013-Ohio-4307,
¶ 32 (11th Dist.), citing State v. Sansom, 2010-Ohio-1918, ¶ 9 (2d Dist.); State v.
Ruark, 2015-Ohio-3206, ¶ 11 (10th Dist.), citing State v. Turner, 2007-Ohio-1468,
¶ 11 (10th Dist.), citing State v. McDonald, 2005-Ohio-798, ¶ 19 (6th Dist.). “And
the ‘facts’ contemplated by R.C. 2953.23(A)(1)(a) are the historical facts of the
case, which occurred up to and including the time of conviction.” Ruark at ¶ 11,
citing Turner at ¶ 11.
{¶18} “[T]he petitioner bears the burden of proving that he was unavoidably
prevented from discovering the evidence on which he must rely, before the trial
court even has subject-matter jurisdiction to consider the petition.” State v. Johnson,
2024-Ohio-134, ¶ 26, citing R.C. 2953.23(A)(1). “‘The phrase ‘unavoidably
prevented’ in R.C. 2953.23(A)(1)(a) means that a defendant was unaware of those
facts and was unable to learn of them through reasonable diligence.’” State v.
Vinson, 2021-Ohio-836, ¶ 16 (10th Dist.), quoting Turner at ¶ 11. “The Supreme
Court also made clear ‘R.C. 2953.23(A)(1)(a) requires a petitioner to show that he
was “unavoidably prevented”—not merely “prevented”—from discovering the
facts on which he would rely.’” (Emphasis sic.) State v. Gordon, 2024-Ohio-530, ¶
19 (10th Dist.), quoting Johnson at ¶ 24. “Thus ‘a petitioner filing an untimely
postconviction petition must show that any delay in discovering the facts
undergirding the petition was “incapable of being avoided or evaded.”’” Id.,
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quoting Johnson at ¶ 24, quoting Merriam-Webster’s Collegiate Dictionary 638
(11th Ed. 2003).
{¶19} “‘Whether a trial court has jurisdiction to consider an untimely petition
for postconviction relief is a question of law to which we apply a de novo standard
of review.’” State v. Pippins, 2026-Ohio-1827, ¶ 8 (10th Dist.), quoting State v.
[L.A.A], 2020-Ohio-643, ¶ 19 (10th Dist.). “‘This court must apply a manifest
weight standard in reviewing a trial court’s findings on factual issues underlying the
substantive grounds for relief, but we must review the trial court’s legal conclusions
de novo.’” Vinson at ¶ 9, quoting State v. Kane, 2017-Ohio-7838, ¶ 9 (10th Dist.).
Analysis
{¶20} Keith’s first assignment of error contends the trial court erred by
concluding he was not unavoidably prevented from discovering the complete bodyworn camera footage without considering evidence of his intellectual and
psychological limitations. This argument fails because the trial court properly
applied the “unavoidably prevented” standard, and Keith’s personal limitations do
not excuse the statutory requirement that he could not have discovered the evidence
through reasonable diligence.
{¶21} In its judgment entry denying Keith’s petition for postconviction
relief, the trial court identified three independent bases supporting its conclusion
that Keith could have discovered the complete body-worn camera footage through
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reasonable diligence: publicly filed discovery responses, explicit trial testimony,
and Keith’s personal knowledge of the duration of his arrest.
{¶22} First, the State’s May 3, 2021 Response to Discovery, docketed as part
of the public record, expressly listed “DVD – Officers B. Thomas, Barber, and
Cochell’s body camera videos.” Keith admitted he reviewed the court docket in
July to September 2021 and could request docket sheets from the clerk. With
reasonable diligence—a review of the public docket—Keith could have discovered
as early as May 3, 2021 that the State had produced body-worn camera recordings
from three officers, not just the 12-minute except shown at trial.
{¶23} Second, the trial transcript described State’s Exhibit 2 as “a portion”
of Officer Thomas’s body-worn camera recording. Keith admitted he had a copy of
the trial transcript. Accordingly, the reference to the “portion” of the recording put
Keith on notice that additional footage existed beyond the 12 minutes introduced at
trial.
{¶24} Third, Keith’s personal knowledge of his arrest provided further
grounds for inquiry. Keith knew his arrest lasted approximately 40 minutes, but
only 12 minutes of video was introduced at trial. This discrepancy alone should
have alerted Keith to the existence of additional body-worn camera footage and
warranted further inquiry about what other recordings might exist.
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{¶25} As the trial court found, Keith had multiple indications in the public
record and trial transcript that additional footage existed, making the complete
recordings reasonably discoverable.
{¶26} Keith argues that the trial court failed to consider evidence that he
lacked the intellectual and psychological capacity to conduct the requisite diligence.
He points to a fourth-grade reading level, history of mental illness, lack of
consistent-medication in jail, and physical health problems as factors preventing
him from discovering the evidence. While these circumstances may warrant
compassion, they do not satisfy the legal standard for unavoidable prevention. The
“unavoidably prevented” standard focuses on whether the facts were reasonably
discoverable, not whether the particular defendant possessed the subjective capacity
to discover them.
{¶27} Moreover, Keith had access to legal assistance throughout the relevant
period. He was represented by two court-appointed attorneys who had the complete
body-worn camera footage. After his conviction, he filed multiple pro se motions
and appeals. The reasonable diligence standard does not require defendants to “outthink” their lawyers, as Keith contends, but it does require them to review public
court records and ask basic questions about discrepancies in the evidence—tasks
Keith was capable of performing.
{¶28} Keith argues that the trial court’s July 29, 2025 order “established” as
a new fact that both defense attorneys received the complete body-worn camera
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footage, and he was unavoidably prevented from discovering this fact until July
2025.
{¶29} However, as the trial court correctly noted it “did not create or
establish anything” but “merely acknowledged what the record reflects.” The fact
that the State produced complete body camera recordings to defense counsel was
documented in publicly filed discovery responses from May and November 2021.
The trial court’s July 2025 order did not create this fact; it simply resolved Keith’s
claim that the prosecutor suppressed the evidence by confirming what the record
already showed. Second, even if the trial court’s order clarified an ambiguity about
whether defense counsel actually received the footage, Keith’s petition relies on the
underlying fact of the complete body-worn camera footage itself, not the fact of its
production to counsel. The “facts upon which the petitioner must rely” under R.C.
2953.23(A)(1) are the alleged exculpatory contents of the body-worn camera
recordings, which Keith discovered in November 2024. Whether those recordings
were provided to his attorneys or suppressed by the prosecutor is a legal theory, not
the historical fact forming the basis of his ineffective assistance claim. Ruark, 2015-Ohio-3206, at ¶ 11.
{¶30} Accordingly, the trial court did not err by denying his petition for
postconviction relief. Keith’s first assignment of error is overruled.
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{¶31} In his second assignment of error, Keith contends that the trial court
abused its discretion and violated his constitutional rights by dismissing the petition
without holding a hearing.
{¶32} “The filing of a petition for postconviction relief does not
automatically entitle the petitioner to an evidentiary hearing.” State v. Andrews,
2011-Ohio-6106, ¶ 11 (3d Dist.), citing State v. Calhoun, 86 Ohio St.3d 279, 282
(1999). Rather, “[b]efore granting a hearing on a petition filed under [R.C.
2953.21(A)], the court shall determine whether there are substantive grounds for
relief.” R.C. 2953.21(D).
{¶33} “In making such a determination, the court shall consider, in addition
to the petition, the supporting affidavits, and the documentary evidence, all the files
and records pertaining to the proceedings against the petitioner, including, but not
limited to, the indictment, the court’s journal entries, the journalized records of the
clerk of the court, and the court reporter’s transcript.” R.C. 2953.21(D).
{¶34} “[I]f the court determines that there are no substantive grounds for
relief, it may dismiss the petition without an evidentiary hearing.” State v. Jones,
2007-Ohio-5624, ¶ 14 (3d Dist.). “The decision to grant the petitioner an
evidentiary hearing is left to the sound discretion of the trial court.” Andrews at ¶
11. Accordingly, “[w]e review the trial court’s dismissal of a postconviction
petition without a hearing for abuse of discretion.” State v. Jeffers, 2011-Ohio3555, ¶ 22 (10th Dist.). An abuse of discretion suggests the trial court’s decision is
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unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219 (1983). While the abuse of discretion standard applies, an appellate court
is not to substitute its judgment for that of the trial court. State v. Thompson, 2017-Ohio-792, ¶ 11 (3d Dist.).
{¶35} “Substantive grounds for relief exist and a hearing is warranted if the
petitioner produces sufficient credible evidence to demonstrate that the petitioner
suffered a violation of the petitioner’s constitutional rights.” State v. Yarbrough,
2001 Ohio App. LEXIS 1930, *10 (3d Dist. Apr. 30, 2001). Where, as here, a
petitioner asserts that they were deprived of their constitutional right to the effective
assistance of counsel, “the petitioner bears the initial burden to submit evidentiary
documents containing sufficient operative facts to demonstrate the lack of
competent counsel and that the defense was prejudiced by counsel’s
ineffectiveness.” State v. Jackson, 64 Ohio St.2d 107 (1980), syllabus. A petitioner
who fails to carry his initial burden with respect to either prong of his ineffectiveassistance-of-counsel claim consequently fails to demonstrate that there are
substantive grounds for relief, and the trial court may deny the petition without
conducting an evidentiary hearing. State v. Hoover-Moore, 2008-Ohio-2020, ¶ 13
(10th Dist.). In addition, a trial court may properly deny a petition for
postconviction relief without holding a hearing if the claims in the petition are
barred by res judicata.
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{¶36} As addressed in our discussion of Keith’s first assignment of error, a
trial court lacks jurisdiction to consider the merits of an untimely petition for
postconviction relief unless the petitioner establishes an exception to the timeliness
requirement. Pippins, 2026-Ohio-1827, at ¶ 18. “[W]hen a trial court lacks
jurisdiction over an untimely postconviction relief petition because the petitioner
failed to establish an exception to the timeliness requirement, the court does not err
by denying the untimely petition without an evidentiary hearing.” Id. See State v.
Dye, 2024-Ohio-3191, ¶ 32 (8th Dist.) (“The trial court did err by holding a hearing
when the petition was untimely and appellant had failed to demonstrate an exception
under the statute.”).
{¶37} Here, the trial court lacked jurisdiction to consider the merits of
Keith’s petition for postconviction relief because he failed to demonstrate that he
was unavoidably prevented from discovering the information relied on in support
of the petition. Thus, because the trial court lacked jurisdiction to consider the
merits of the petition, it did not err by denying Keith’s petition without a hearing.
See State v. Peoples, 2006-Ohio-2614, ¶ 10 (1st Dist.) (“[T]he purpose of a hearing
on a postconviction claim is to aid the court in determining the claim on its merits.
It follows that the court need not conduct a hearing on a postconviction claim that
the court has no jurisdiction to entertain.”).
{¶38} Keith’s second assignment of error is overruled.
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Conclusion
{¶39} For the foregoing reasons, Keith’s assignments of error are overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Marion County Court of Common Pleas.
Judgment Affirmed
ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
Mark C. Miller, Judge
William R. Zimmerman, Judge
John R. Willamowski, Judge
DATED:
/jlm
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