2006 Ohio 2836 | Ohio Ct. App. | 2006
{¶ 2} On December 23, 2002, appellant pled guilty as charged. By judgment entry filed January 3, 2003, the trial court sentenced appellant to five years on the robbery count, twelve months on the failure to appear count and six months on the theft count. The sentences on the robbery and failure to appear counts were ordered to be served consecutively.
{¶ 3} Appellant filed an appeal raising as his sole assignment of error that the trial court erred in sentencing him to consecutive sentences. See, State v. Cates, 5th Dist. No. 03CA06, 2003-Ohio-4376. [Hereinafter Cates I]. We affirmed the trial court finding that trial court made the requisite statutory findings in imposing consecutive sentences on appellant's convictions for robbery, failure to appear, and theft in both its judgment entry and during sentencing hearing; the court found consecutive sentences were necessary to protect the public from future crime, that no single term adequately reflected the seriousness of defendant's conduct, that appellant was likely to re-offend, that appellant was out on bond when he committed the offense, that appellant had been previously convicted to two felonies, and that victim suffered serious harm. Id.
{¶ 4} On February 8, 2005, appellant filed a motion with the trial court requesting a modification of the sentence originally imposed and affirmed on appeal. In appellant's first motion appellant argued for intervention in lieu of conviction. (Appellant's Motion for Modification or Reduction of Sentence filed February 8, 2005). The State's Memorandum Contra pointed out that appellant did not apply for intervention before entering his plea and that appellant was not eligible for intervention due to prior felony convictions. (Memorandum Contra filed February, 10, 2005 at 2). The trial court "reviewed the pleadings, the applicable law, and the contents of defendants file" and found that "the defendant [was] not, as a matter of law entitled to the requested relief" and therefore overruled appellant's motion without a hearing. (Judgment Entry filed February 23, 2005).
{¶ 5} Appellant did not file an appeal from the trial court's denial of the February 8, 2005 motion.
{¶ 6} On July 21, 2005, a second motion to modify the sentence imposed was filed by appellant. In appellant's second motion for a modification or reduction of sentence, appellant requested judicial release. (Appellant's Motion for Modification or Reduction of Sentence filed July 21, 2005). Appellant's motion contained no citations to authority and the State argued appellant's motion did not comply with Crim. R. 47. (Memorandum Contra filed July 27, 2005 at 2). Additionally, the State argued appellant was not eligible for judicial release because appellant had not served five years incarceration as required by R.C.
{¶ 7} A third motion to modify sentence was filed by appellant on September 9, 2005. In appellant's third motion for a modification or reduction of sentence, appellant argued his sentence violated the United States Supreme Court decision inBlakely v. Washington (2004), ___ U.S. ___,
{¶ 8} On October 7, 2005, appellant filed a notice of appeal under Fairfield County Appellate Case Number 05-CA-96. On October 28, 2005, this appeal was dismissed for failure to comply with App.R.3 (D). A second notice of appeal was filed on October 25, 2005, which gives rise to the instant matter.
{¶ 9} Appellant was appointed counsel to represent him in the instant appeal and this matter is now before this court for consideration of the following sole assignment of error:
{¶ 10} "THE TRIAL COURT COMMITTED HARMFUL ERROR IN DENYING, WITHOUT BENEFIT OF AN ORAL HEARING, THE SEVERAL MOTIONS OF THE APPELLANT TO MODIFY THE SENTENCE IMPOSED".
{¶ 12} At the outset we note that App.R. 4(A) states: "A party shall file the notice of appeal required by App.R. 3 within thirty days of the later of entry of the judgment or order appealed or, in a civil case, service of the notice of judgment and its entry if service is not made on the party within the three day period in Rule 58(B) of the Ohio Rules of Civil Procedure."
{¶ 13} App.R. 5(A) provides, in relevant part: "(1) After the expiration of the thirty day period provided by App.R. 4(A) for the filing of a notice of appeal as of right, an appeal may be taken by a defendant with leave of the court to which the appeal is taken in the following classes of cases:
{¶ 14} "(a) Criminal proceedings;
{¶ 15} "(b) Delinquency proceedings; and
{¶ 16} "(c) Serious youthful offender proceedings.
{¶ 17} "(2) A motion for leave to appeal shall be filed with the court of appeals and shall set forth the reasons for the failure of the appellant to perfect an appeal as of right."
{¶ 18} In this appeal, appellant has neither complied with the thirty-day rule set forth in App.R. 4(A), nor did he seek leave to appeal with respect to the trial court's February 23, 2005 and August 2, 2005 Judgment Entries overruling appellant's motions to modify his sentence. Appellant having failed to timely file his notice of appeal from those entries, we lack jurisdiction to consider any error relative to the February 23, 2005 and August 2, 2005 Judgment Entries.
{¶ 19} With respect to the appellant's third motion to modify sentence filed by appellant on September 9, 2005 we note the caption of a pro se pleading does not definitively define the nature of the pleading. State v. Reynolds,
{¶ 20} Post conviction efforts to vacate a criminal conviction or sentence on constitutional grounds are governed by R.C.
{¶ 21} "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."
{¶ 22} Pursuant to R.C.
{¶ 23} The record indicates appellant did file a direct appeal in this matter with a transcript. The transcript was filed in this Court on April 11, 2003. Therefore, under R.C.
{¶ 24} Appellant did not file his petition for post-conviction relief until May 16, 2005, which is well beyond the time 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.
{¶ 25} "* * * [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:
{¶ 26} "(1) Either of the following applies:
{¶ 27} "(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.
{¶ 28} "(b) Subsequent to the period prescribed in division (A)(2) of section
{¶ 29} "(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 factfinder would have found the petitioner eligible for the death sentence."
{¶ 30} The United States Supreme Court has not made the decision in Blakely v. Washington (2004), ___ U.S. ___,
{¶ 31} In State v. Foster, ____ Ohio St.3d ____,
{¶ 32} As previously stated, in Booker, supra, the United States Supreme Court limited its holdings in Blakely andApprendi to cases on direct review. Similarly, in Foster, the Ohio Supreme Court restricted retroactive application of its holding to cases on direct review. Appellant's case is before us on appeal from a denial of his petition for post-conviction relief, not from direct appeal. As such, appellant has failed to meet his burden under R.C.
{¶ 33} We find that the trial court's denial is proper because the court was not statutorily authorized to entertain the petition because of its untimeliness. Id.
{¶ 34} Therefore, we find appellant's argument based uponBlakely unpersuasive as this sentencing issue is not being raised on direct review.
{¶ 35} Appellant's sole assignment of error is overruled.
{¶ 36} The judgment of the Fairfield County Court of Common Pleas is affirmed.
By Gwin, J., Wise, P.J., and Farmer, J., concur.
