State v. Salim
2014 Ohio 357
Ohio Ct. App.2014Background
- Salim was convicted by a jury of aggravated robbery, kidnapping, abduction, failure to comply with police, and theft of drugs with gun specifications.
- This Court previously affirmed Salim’s convictions and sentences in 2009 (Salim I).
- Salim filed a post-conviction petition under R.C. 2953.21 on August 12, 2013.
- The trial court overruled the petition in September 2013.
- Salim argues the petition was timely under Alleyne and seeks retroactive application of Alleyne to collateral review.
- The transcript from Salim’s direct appeal was filed February 17, 2009; under R.C. 2953.21(A)(2), the petition should have been filed no later than 180 days after that date.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under 2953.21 | Salim asserts new-right timing tolls petition. | State maintains untimely petition under 2953.21(A)(2). | Untimely petition; barred absent 2953.23(A) exceptions. |
| Retroactivity of Alleyne on collateral review | Alleyne creates retroactive rights for PCR. | Alleyne not retroactive on collateral review. | Alleyne not retroactive; no jurisdiction to entertain untimely PCR. |
Key Cases Cited
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that facts increasing mandatory minimums must be jury-found)
- State v. Foster, 109 Ohio St.3d 1 (2006) (struck withers mandatory consecutive-sentencing findings)
- Oregon v. Ice, 555 U.S. 160 (2009) (permits judicial fact-finding for consecutive sentences; not unconstitutional per se)
- State v. Hodge, 128 Ohio St.3d 1 (2010) (clarifies post-Ice sentencing findings not required)
- In re Payne, 733 F.3d 1027 (2013) (discusses Alleyne retroactivity in the Tenth Circuit)