State v. AleshireState v. Aleshire
Case Information
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[Cite as
State v. Aleshire
,
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2011-CA-99 LONNY J. ALESHIRE, JR. :
:
Defendant-Appellant : O P I N I O N CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No. 05-CR- JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 24, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant KENNETH W. OSWALT LONNY J. ALESHIRE, JR.
Licking County Prosectur No. 508762
20 S. Second Street Chillicothe Correctional Inst.
Newark, OH 43055 Box 5500
Chillicothe, OH 45601
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[Cite as
State v. Aleshire
,
Gwin, J.
{¶ 1}
A complete history of appellant’s underlying case and subsequent journey
through the appellate process is set forth in State v. Aleshire, 5 Dist. No. 2011-CA-73,
{¶ 2} The instant appeal stems from appellant having filed a Petition for Post- Conviction Relief on July 6, 2011, which the trial court denied on August 30, 2011. The trial court found that appellant’s petition was not timely filed and that the issues raised by appellant in his petition for post conviction relief were barred by the doctrine of res judicata.
{¶ 3} Appellant assigns as error,
{¶ 4} “THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF WAS BARRED BY RES JUDICATA AND UNTIMELY FILED.”
I.
{¶ 5}
Post conviction efforts to vacate a criminal conviction or sentence on
constitutional grounds are governed by
{¶ 6} “Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, and any person who has been convicted of a criminal offense that is a felony, who is an inmate, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.”
{¶ 7}
Pursuant to
{¶ 8}
The record indicates appellant did file an appeal in this matter with a
transcript. The transcript was filed in this Court in 2007. See, State v. Aleshire, 5 Dist.
No. 2007–CA–1, 2007–Ohio–4446, 2007 WL 2446789. Therefore, under
{¶ 9}
However, appellant did not file his petition for post-conviction relief until
July 6, 2011, which is well beyond the period provided for in the statute. Because
appellant's petition was untimely filed, the trial court was required to entertain
appellant's petition only if he could meet the requirements of
period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply: "(1) Either of the following applies:
{¶ 12} "(a) 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.
{¶ 13}
"(b) Subsequent to the period prescribed in division (A)(2) of
{¶ 14}
"(2) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the petitioner
guilty of the offense of which the petitioner was convicted or, if the claim challenges a
sentence of death that, but for constitutional error at the sentencing hearing, no
reasonable fact finder would have found the petitioner eligible for the death sentence.”
Appellant's argument does not rely on
the
language
in
scope of the re-sentencing hearing was limited to the proper imposition of post-release
control. Concerning
{¶ 17}
In this case, appellant’s petition was primarily directed at errors in the
original proceedings, not the resentencing. Therefore, those errors should have been
raised in a timely petition following his original conviction and sentence. State v. Seals ,
8 th Dist. No. 93198,
{¶ 18}
Further, Ohio courts are unanimous in concluding that the time limit for
filing a petition for post-conviction relief runs from the original appeal of the conviction.
State v. Davis, 4 th Dist. No. 10CA25,
under R.C. 2953. 21(A) (2) and fails to meet the narrow exceptions allowing for untimely
filing provided by
{¶ 21}
Finally, a trial court may also dismiss a petition seeking post-conviction
relief if it determines that the doctrine of res judicata applies. State v. Szefcyk, 77 Ohio
St.3d 93, 671 N.E.2d 233,
of trial counsel, the denial of the trial court to permit him to withdraw his plea, the re-
sentencing on the three counts of sexual imposition, his right to address the court, and
the trial court’s alleged failure to inform him of his right to appeal. See, State v. Aleshire,
5 Dist. No. 2011-CA-73,
post-conviction relief on the ground that, 1). The time limit for filing a petition for post-
conviction relief runs from the original appeal of the conviction; and 2). Res judicata acts
to bar further litigation regarding the issues raised in appellant’s petition for post
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conviction relief. State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997);
Smith ,
is affirmed.
By Gwin, J., and
Delaney, P.J., and
Edwards, J., concur
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. JULIE A. EDWARDS WSG:clw 0123
[Cite as
State v. Aleshire
,
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
: -vs- : JUDGMENT ENTRY
:
LONNY J. ALESHIRE, JR. :
:
: Defendant-Appellant : CASE NO. 2011-CA-99 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Licking County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________ HON. W. SCOTT GWIN _________________________________ HON. PATRICIA A. DELANEY _________________________________ HON. JULIE A. EDWARDS