State v. Lee, 2018 Ohio 3715

Robert J. Lee was convicted in 2010 of multiple felonies (aggravated burglary, two aggravated robberies, felonious assault, breaking and entering) and sentenced to an aggregate 39-year prison term.
Lee appealed; this court affirmed his convictions and sentence; the Ohio Supreme Court later declined jurisdiction on his cross-appeal.
In April 2018 Lee filed a petition for post-conviction relief contending Counts One (aggravated burglary), Two (aggravated robbery) and Three (felonious assault) were allied offenses under R.C. 2941.25 after State v. Johnson.
The trial court denied the petition as untimely. Lee appealed the denial.
The appellate court treated Lee’s brief as challenging denial of post-conviction relief and reviewed whether the petition met R.C. 2953.21 and the timeliness exceptions in R.C. 2953.23.
The court affirmed, holding Lee’s petition was untimely and he failed to meet the R.C. 2953.23(A)(1)(a) exceptions (he did not show unavoidable prevention to discover facts, and Johnson did not create a retroactive right under the U.S. Supreme Court standard).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness / jurisdiction over post-conviction petition	State: petition filed beyond R.C. 2953.21 deadline; court lacks jurisdiction absent R.C. 2953.23 exception	Lee: petition timely via R.C. 2953.23 because Johnson announced a new retroactive right	Held: Petition untimely; Lee failed to satisfy R.C. 2953.23(A)(1)(a); trial court lacked jurisdiction to entertain untimely petition
Applicability of Johnson to permit delayed relief	State: Johnson is an Ohio Supreme Court statutory-interpretation decision, not a retroactive right under the U.S. Supreme Court standard required by R.C. 2953.23	Lee: Johnson changed merger/ allied-offense analysis such that his convictions should merge	Held: Johnson does not satisfy R.C. 2953.23(A)(1)(a)’s requirement (it is not a new right recognized by the U.S. Supreme Court), so it does not justify filing a late petition

State v. Lee, 190 Ohio App.3d 581 (Ohio Ct. App. 2010) (appellate decision affirming convictions and sentence)
State v. Stall, 128 Ohio St.3d 501 (Ohio 2011) (Ohio Supreme Court disposition related to co-defendant appeal)
State v. Johnson, 128 Ohio St.3d 153 (Ohio 2010) (Ohio Supreme Court decision altering allied-offense analysis under state law)
State v. Gondor, 112 Ohio St.3d 377 (Ohio 2006) (standard of review and precedent on post-conviction relief procedures)
State v. Beaver, 131 Ohio App.3d 458 (Ohio Ct. App. 1998) (premise that untimely post-conviction petitions deprive trial court of jurisdiction)