2006 Ohio 2398 | Ohio Ct. App. | 2006
{¶ 2} In 2001, appellant was convicted of aggravated vehicular homicide, a second-degree felony, and aggravated vehicular assault, a third-degree felony, following a jury trial. Appellant received a maximum eight-year prison term for the aggravated vehicular homicide conviction and four years for the aggravated vehicular assault with the terms to be served consecutively. Appellant's convictions and sentence were affirmed on direct appeal. State v. Abbott, Warren App. No. CA2001-10-093, 2002-Ohio-6278, appeal not accepted for review,
{¶ 2} Over three years later, on February 16, 2005, appellant filed his motion with the trial court, seeking to have his sentences modified to minimum and concurrent terms under Blakelyv. Washington (2004), 542 U.S.296,
{¶ 3} Assignment of Error No. 1:
{¶ 4} "THE TRIAL COURT ERRED TO THE PREJUDICE OF PETITIONERA-PPELLANT IN NOT GRANTING RELIEF PURSUANT TO HIS APPLICATION-PETITION, OR MOTION FOR A NEW TRIAL, OR VACATE, OR MODIFY SENTENCE. AS TO PETITIONER-APPELLANT IS BEING ILLEGAL HELD PURSUANT TO VIOLATIONS OF THIE
{¶ 5} Assignment of Error No. 2:
{¶ 6} "THE TRIAL COURT ERRED TO THE PREJUDICE OF PETITIONER-APPELLANT IN NOT GRANTING RELIEF. PURSUANT TO VIOLATIONS OF THE EQUAL PROTECTION DUE PROCESS CLAUSES OF THE
{¶ 7} Assignment of Error No. 3:
{¶ 8} "THE TRIAL COURT ERRED TO THE PREJUDICE OF PETITIONERA-PPELLANT IN NOT ADDRESSING THE VALIDITY OF BOTH SENTENCES, OR MULTIPLE OFFENSES, OR SEPARATE CRIMES [sic]."
{¶ 9} Appellant's assignments of error collectively argue that he is entitled to minimum and concurrent prison terms as a result of the United States Supreme Court's decision inBlakely, and the Ohio Supreme Court's subsequent decision inState v. Foster,
{¶ 10} Although appellant styled his motion as requesting a "new trial" based upon newly discovered evidence, appellant did not submit affidavits from the witnesses who were expected to provide the new evidence. Crim.R. 33(A)(6). While appellant contends his motion is based upon "newly discovered evidence," appellant merely relied upon recent or "newly decided" case law, namely Blakely and Foster, both of which were decided after appellant's conviction and sentence became final. Appellant's efforts based upon Blakely amount to nothing more than an attempt to correct his sentence on the premise that his constitutional rights have been violated.
{¶ 11} We do not find that the trial court abused its discretion in denying appellant's motion if the denial was predicated upon a determination that the motion was one for a new trial based upon newly discovered evidence. See State v. LaMar,
{¶ 12} Since appellant's motion sought to modify his sentence based upon an alleged violation of his constitutional rights, his motion can only be properly construed as a petition for postconviction relief. The Ohio Supreme Court has held that "[w]here a criminal defendant subsequent to his or her direct appeal files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21." State v.Reynolds,
{¶ 13} The decision to grant or deny a petition for postconviction relief is committed to the discretion of the trial court. State v. Watson (1998),
{¶ 14} "Except as otherwise provided in section
{¶ 15} Appellant's trial transcript was filed in his direct appeal on January 30, 2002. Consequently, the 180-day time period for filing a postconviction relief petition ended on July 29, 2002. However, appellant did not file his motion until February 15, 2005, over two and one-half years later and well beyond the scope of the permissible time frame of R.C.
{¶ 16} Although appellant did not file his petition for postconviction relief within the statutory time period, we nevertheless consider the exception in R.C.
{¶ 17} "[A] court may not entertain a petition filed after the expiration of the period prescribed in * * * [R.C.
{¶ 18} "(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 * * * [R.C.] 2953.21[(A)(2)] * * *, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.
{¶ 19} "(b) The petitioner shows by clear and convincingevidence that, but for constitutional error at trial, noreasonable fact finder would have found the petitioner guilty ofthe offense of which the petitioner was convicted * * *." (Emphasis added.)
{¶ 20} Appellant did not meet the requirements set forth in R.C.
{¶ 21} Since appellant's assignments of error relates to sentencing and not to guilt, the common pleas court did not abuse its discretion in dismissing the motion or petition for postconviction relief. Appellant neither filed his petition with the 180-day time period of R.C.
{¶ 22} As to appellant's claim that his "right" to be sentenced to minimum concurrent terms has been in effect since 2000 when the Supreme Court decided Apprendi v. New Jersey
(2000),
{¶ 23} For the reasons set forth above, we conclude that the trial court correctly denied appellant's motion, regardless of whether it is construed as a motion for new trial or a petition for postconviction relief. Accordingly, appellant's assignments of error are hereby overruled.
{¶ 24} Judgment affirmed.
Powell, P.J., and Walsh, J., concur.
