STATE OF OHIO, JEFFERSON COUNTY v. MARCUS BROOKS
CASE NO. 14 JE 3
STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 2, 2015
[Cite as State v. Brooks, 2015-Ohio-836.]
Hon. Gene Donofrio, Hon. Chery L. Waite, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Jefferson County, Ohio Case No. 04CR11. JUDGMENT: Affirmed.
For Plaintiff-Appellee Jane Hanlin Prosecutor P.O. Box 1506 100 North Fourth St., 10th Floor Steubenville, Ohio 43952 No brief filed.
For Defendant-Appellant Marcus L. Brooks, Pro-se #04775-087 201 FCI Lane P.O. Box 6000 Glenville, WV 26351
{¶1} Defendant-appellant, Marcus Brooks, appeals from a Jefferson County Common Pleas Court judgment denying his postconviction petition to vacate or set aside judgment.
{¶2} On February 4, 2004, a Jefferson County Grand Jury indicted appellant on one count of trafficking in drugs, a third-degree felony in violation of
{¶3} Appellant initially pleaded not guilty, but later entered a guilty plea to the indictment. The trial court accepted appellant’s guilty plea and proceeded to sentencing. The court stated that appellant and plaintiff-appellee, the State of Ohio, had entered into an agreed sentence, which the court imposed. The court sentenced appellant to 18 months in prison for trafficking in drugs, 12 months for trafficking in counterfeit drugs, and three months for possession of counterfeit drugs, all to be served concurrently. The court also imposed a two-year driver’s license suspension and fined appellant $500. Appellant did not file an appeal from this April 1, 2004, judgment.
{¶4} On December 9, 2013, appellant, acting pro se, filed a postconviction petition titled “BROOKS SUBMITS THIS MEMORANDUM OF LAW IN SUPPORT OF NUNC PRO TUNC ORDER VACATING CONVICTION.” The petition suggested that his counsel was ineffective for failing to advise him of the collateral consequences of his plea. Numerous pages of appellant’s petition are then missing. Appellant did make some mention of his offenses being allied offenses of similar import and that he was unaware that two of the charges were felonies.
{¶5} The trial court overruled appellant’s motion, finding that appellant was fully advised of his sentence and that appellant did not appeal from the sentence or his guilty plea.
{¶7} Appellant filed a timely notice of appeal on February 12, 2014.
{¶8} The State has failed to file a brief in this matter. Therefore, we may consider appellant‘s statement of the facts and issues as correct and reverse the judgment if appellant‘s brief reasonably appears to sustain that action. App.R. 18(C).
{¶9} Appellant, still acting pro se, now raises “proposition one,” which appears to be his sole assignment of error. It states:
THE UNITED STATES SUPREME COURT RECENTLY FOUND AN ATTORNEY WHO FAILS TO WARN AN IMMIGRANT OF THE POSSIBILITY OF DEPORTATION IS INEFFECTIVE. DO THESE PRINCIPLES APPLY WHERE A DEFENSE ATTORNEY OMITS FROM HIS ADVICE THE COLLATERAL CONSEQUENCES OF A CONVICTION[?]
{¶10} Appellant claims that the trial court dismissed his petition for lack of jurisdiction. He goes on to argue that the trial court should have reviewed the transcripts from his change of plea hearing, which he claims would have demonstrated that the court never inquired whether appellant’s counsel informed him of the collateral consequences of his plea. Appellant asserts his trial counsel was ineffective for failing to inform him of these consequences including the fact that his conviction could enhance his penalty on federal drug charges that he could face sometime in the future. He asserts his counsel led him to believe “he would shed the consequences [of his crimes] at the termination of the case providing an unimpaired future.” Appellant states he relied on this advice of counsel and, therefore, chose not to file a direct appeal. Appellant asks that we reverse the trial court’s judgment,
{¶11} A postconviction petition must be timely filed. This requirement is jurisdictional.
{¶12} If a postconviction relief petition is filed beyond the 180-day time limitation or the petition is a second or successive petition for postconviction relief,
{¶13} Unless the defendant makes the showing required by
{¶14} In this case, appellant‘s petition was unquestionably filed beyond the 180-day time limit set forth in
{¶15} Appellant contends his petition was based on “an intervening change in Supreme Court precedent,” namely the United States Supreme Court’s judgment in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), and
{¶16} In Padilla, the Supreme Court found trial counsel was deficient in failing to inform the defendant that his guilty plea made him subject to automatic deportation. Appellant asserts that his counsel was likewise ineffective because counsel failed to inform him of the collateral consequence stemming from his guilty plea of enhanced penalties he might face in future charges. Appellant seems to claim this “new right” applies retroactively to him.
{¶17} Padilla, however, does not apply retroactively. Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1107, 185 L.E.2d 149 (2012). As the First District Court of Appeals explained,
the Supreme Court, applying the principles set forth in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), held that Padilla could not be applied retroactively to convictions that had become final before March 31, 2010, when the case was decided, because the case announced a “new rule” when it answered an open question concerning the reach of the Sixth Amendment in a way that altered the law of most jurisdictions. Chaidez at 1107-1113.
State v. Bishop, 1st Dist. No. C-130074, 2014-Ohio-173, ¶9. A conviction is final when all appellate remedies have been exhausted. Id. at ¶10, citing Teague, at 295.
{¶18} Under these rules, appellant’s conviction became final in 2004, when the time for him to file a direct appeal from his conviction expired. See Chaidez, at ¶10. Because appellant’s conviction was final before the Supreme Court decided Padilla, Padilla does not apply retroactively to appellant’s case. See Id.; See also, State v. Spivakov, 10th Dist. Nos. 13AP-32, 13AP-33, 2013-Ohio-3343, ¶15.
{¶19} Because Padilla does not apply retroactively to appellant’s case, appellant has not met the exception to the timeliness requirement for postconviction petitions. Appellant’s postconviction petition was untimely.
{¶20} Since Padilla does not apply retroactively, we need not address
{¶21} Accordingly, appellant’s sole assignment of error is without merit.
{¶22} For the reasons stated above, the trial court’s judgment is affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.