State v. Tate
2015 Ohio 3859
Ohio Ct. App.2015Background
- Lloyd Tate was convicted by a jury of attempted murder (1st deg.) and two counts of felonious assault (2nd deg.); the felonious assault counts were merged as allied to attempted murder.
- The trial court found Tate guilty of repeat violent offender specifications based on a 1989 robbery conviction and imposed an additional 2-year sentence consecutive to an 11-year attempted-murder term; the court also ordered forfeiture of his truck.
- Tate appealed; the Fifth District Court of Appeals affirmed his convictions, sentence, and the repeat-violent-offender finding. The Ohio Supreme Court declined jurisdiction on a delayed-appeal motion.
- Tate filed a motion titled "motion to correct sentence" on September 18, 2014, which the trial court treated as a petition for post-conviction relief under R.C. 2953.21 and denied as untimely and barred by res judicata.
- Tate argued he could not be sentenced as a repeat violent offender because (1) his prior robbery conviction was over 20 years old and (2) the prior offense was not proven to be an offense of violence.
- The trial court found Tate’s arguments were either record-based (thus could have been raised on direct appeal) or otherwise not within the statutory exceptions allowing consideration of an untimely post-conviction petition; the denial was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying Tate’s motion to correct sentence (treated as untimely post-conviction petition) and by imposing the repeat violent offender specification sentence | State: The petition was untimely and barred by res judicata; prior appeal already resolved the repeat-offender issue | Tate: He could not be sentenced under R.C. 2929.14(B)(2)(b) because his prior robbery was more than 20 years old and not proven to be an offense of violence | Court: Petition untimely under R.C. 2953.21; Tate failed to meet R.C. 2953.23 exceptions; claims were record-based and barred by res judicata; denial affirmed |
Key Cases Cited
- State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967) (establishes that a final conviction bars raising issues that were or could have been raised on direct appeal)
- State v. Millanovich, 42 Ohio St.2d 46, 325 N.E.2d 540 (1975) (post-conviction claims are limited to matters outside the trial record)