State v. BarneyState v. Barney
Lead Opinion
DECISION AND JUDGMENT ENTRY
{¶ 1} Darrell Barney appeals the Meigs County Common Pleas Court‘s dismissal of his petition for post-conviction relief for lack of jurisdiction. The crux of Barney‘s argument is that the trial court erred when it dismissed his petition as untimely filed, because the United States Supreme Court created a new federal right, which is an exception to the 180 day filing requirement contained in R.C.
I.
{¶ 2} The trial court convicted and sentenced Barney in 1997. Barney appealed. The transcript for an appeal to this court was filed on December 4, 1997. We affirmed the trial court‘s judgment in State v. Barney (June 7, 1999), Meigs App. No. 97CA12, appeal not allowed by State v. Barney (1999), 87 Ohio St.3d 1417. On June 21, 2005, Barney filed a petition for post-conviction relief, alleging, inter alia, that the Apprendi, Blakely and Booker decisions required the court to revisit its sentencing decision. On July 29, 2005, the court issued an entry dismissing Barney‘s petition because it “lack[ed] jurisdiction to consider [it.] The court found that he did not file the petition within the 180 day prescribed time period as required by R.C.
{¶ 3} Barney timely appeals, asserting the following seven assignments of error: I. “The Trial Court erred when it ruled Appellant‘s petition untimely.” II. “The Trial Court erred when it failed to recognize the federal right established by Booker.” III. “The Trial Court erred when it rules (sic) O.R.C.
I.
{¶ 4} The crux of Barney‘s contention is that the trial court erred when it dismissed his petition for post-conviction relief based upon his failure to timely file it. He does not dispute that he failed to file his petition within the 180 day time period prescribed by R.C.
{¶ 5} Pursuant to R.C.
{¶ 6} Thus, before a trial court may consider an untimely filed petition for post-conviction relief, the petitioner must prove: (1) that he was unavoidably prevented from discovering the facts upon which he bases his petition, or that the petitioner‘s claim is based upon a newly-created federal or state right, which is retroactive to his situation; and (2) that clear and convincing evidence demonstrates that no reasonable factfinder would have found him guilty in the absence of the alleged constitutional error. State v. Howell (June 26, 2000), Meigs App. No. 99CA677.
{¶ 7} This court‘s standard of review is de novo when reviewing a trial court‘s dismissal or denial of a petition for post-conviction relief without a hearing. See, e.g., State v. Gibson, Washington App. No. 05CA20, 2005-Ohio-5353. Thus, we will independently review the record, without deference to the trial court‘s decision, to determine if Barney‘s petition satisfies the two-pronged test in R.C.
{¶ 8} Barney contends that, under the grounds enunciated in Apprendi, Blakely and Booker, his sentence is contrary to law. He maintains that these cases create a new federal or state right that applies retroactively to individuals in his situation. In Blakely, the Court held that the Sixth Amendment right to a jury trial prohibits the enhancement of a sentence based on factual findings made by the judge. Blakely at 301. However, Blakely did not create a new constitutional right because it only applied the principles that were already established in Apprendi. State v. Wilson, Lawrence App. No. 05CA22, at ¶ 14, 2006-Ohio-2049. In Booker, the Court held that its interpretation of sentencing guidelines applied to all cases on direct review. Booker at 268.
{¶ 9} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court of Ohio found that R.C.
{¶ 10} Thus, in Booker, supra, the United States Supreme Court limited its holdings in Blakely and Apprendi to cases on direct review. Similarly, in Foster, the Supreme Court of Ohio restricted the retroactive application of its holding to cases on direct review.
{¶ 11} Here, the trial court sentenced Barney in 1997. He could not directly appeal any new federal right created by Apprendi because it was not decided until 2000. Barney‘s case is now before us on appeal from the court‘s dismissal of his petition for post-conviction relief, not on direct appeal. As such, Barney‘s situation does not comport with the retroactive requirement contained within the first prong of the two-pronged test set forth in R.C.
{¶ 12} Therefore, for the above stated reasons, we find that the trial court lacked jurisdiction to entertain the petition, and properly dismissed it. See Wilson, supra; State v. Rawlins, Scioto App. No. 05CA3021, 2006-Ohio-1901; State v. Kelly, Lucas App. No. L-05-1237, 2006-Ohio-1399, at ¶ 12.
{¶ 13} “`[O]nce a court has determined that a petition is untimely, no further inquiry into the merits of the case is necessary.‘” Wilson at ¶ 16, citing State v. McCain, Pickaway App. No. 04CA27, 2005-Ohio-4952. See, also, State v. Bryant, Mahoning App. No. 04-MA-109, 2005-Ohio-5054, at ¶ 6; State v. Beaver (1998), 131 Ohio App.3d 458, 463. Since Barney did not timely file his petition for post-conviction relief, and further because Barney failed to show that an exception to the prohibition on untimely petitions applies, his remaining arguments are moot, and we decline to address them.
{¶ 14} Accordingly, we overrule Barney‘s argument that he satisfied the two-pronged test in R.C.
JUDGMENT AFFIRMED.
Dissenting Opinion
{¶ 15} I respectfully dissent in the judgment herein and write to clarify my concerns. Based on our recent line of cases I believe we should “dismiss” this appeal for lack of jurisdiction instead of “affirming” the trial court‘s dismissal for lack of jurisdiction. See, State v. Wilson, supra; State v. Rawlins, supra; State v. McCain, supra; and State v. Gilliam, Lawrence App. No. 04CA13, 2005-Ohio-2470 (where this court dismissed the appeals of untimely post-conviction relief petitions).
{¶ 16} While the result may be the same either way, I believe it is very important for this court to be consistent with our prior decisions and deferential to the doctrine of stare decisis.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the costs herein be taxed to the Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
McFarland, J.: Dissents with D