State v. Herzberger, 2017 Ohio 491

Gregory D. Herzberger pleaded guilty (2012) to three counts of rape and three counts of gross sexual imposition; the trial court classified him as a sexual predator under former R.C. 2950 and sentenced him to nine years' imprisonment.
This Court previously affirmed the sexual-predator classification on direct appeal. State v. Herzberger, 9th Dist. Lorain No. 12CA010301, 2013-Ohio-3664.
On November 23, 2015 Herzberger (pro se) filed a "motion for resentencing," arguing his sentence (imposed after H.B. 86 took effect) was contrary to law and void, and requested an evidentiary hearing.
The trial court denied the motion without a hearing on November 30, 2015; Herzberger appealed on January 4, 2016.
The Court of Appeals treated Herzberger’s motion as a petition for post-conviction relief and held it was untimely under R.C. 2953.21(A)(2) (trial transcript was filed December 18, 2012), and Herzberger did not invoke the statutory exceptions allowing late filing.
Because the petition was untimely, the trial court lacked authority to consider it; the appellate court affirmed the denial and overruled Herzberger’s assignments of error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused its discretion by denying Herzberger’s motion for resentencing without a hearing or allowing the State to respond	State: the court properly denied an untimely petition for post-conviction relief; court lacked authority to consider it	Herzberger: denial without hearing or chance for the State to respond was erroneous and an abuse of discretion	The filing was an untimely petition for post-conviction relief; trial court lacked authority to consider it and denial was proper
Whether Herzberger’s sexual-predator classification and related challenges warranted resentencing	State: prior classification affirmed on direct appeal; no basis in the post-conviction petition to reopen	Herzberger: classification ("worst of the worst") and sentence are contrary to law and should be vacated	Challenges to classification were raised previously; petition was untimely and failed to invoke statutory exceptions, so claims were not considered

Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (untimely notice of appeal does not invoke appellate jurisdiction)
State v. Calhoun, 86 Ohio St.3d 279 (postconviction proceedings are collateral civil attacks, not appeals)
State v. Reynolds, 79 Ohio St.3d 158 (characterizing petitions for postconviction relief and related procedure)