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 R.C. 2953.21, which provides:
{¶ 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 R.C. 2953.21(A) (2), a petition for post-conviction relief “shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court. If no appeal is taken, the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal.”
{¶ 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 R.C. 2953.21(A) (2), appellant was required to file his petition " * * * one hundred eighty days after the date on which the trial transcript is filed in the court of appeals...”
{¶ 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 R.C. 2953.23(A). This statute provides, in pertinent part: * * * [A] court may not entertain a petition filed after the expiration of the
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 section 2953.21 of the Revised Code or to the filing of an earlier petition, 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.
{¶ 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 R.C. 2953.23(A)(1)(a) that he “was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief,” rather appellant argues that because his case had been remanded for resentencing in December 2010, the time frame for filing a petition for post-conviction relief, essentially, starts to run again. We disagree. Pursuant to State v. Fischer, 128 Ohio St. 3d 92, 2010– Ohio–6238, the
scope of the re-sentencing hearing was limited to the proper imposition of post-release
control. Concerning R.C. 2953.23(A)(1)(b), we note that Fischer was not a decision by
the United States Supreme Court, and therefore did not constitute recognition by the
United States Supreme Court of a new federal or state right that applies retroactively to
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persons in appellant's situation. See, State v. Berry, 10th Dist. No. 08AP-762, 2009-
Ohio-1557 at 19; State v. Smith , 10 th Dist. No. 09AP-46,
{¶ 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 R.C. 2953.23(A), dismissal of the petition was appropriate. A court has
no jurisdiction to hear an untimely petition for post-conviction relief unless the petitioner
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meets the requirements in R.C. 2953.23(A). State v. Demastry, 5th Dist. No. 05CA14,
{¶ 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