State v. Collins, 06ca40 (7-9-2007)State v. Collins, 06ca40 (7-9-2007)
{¶ 1} Robert Collins appeals the Athens County Common Pleas Court‘s judgment denying his petitions for post-conviction relief filed from a sentence imposed in this case in 1994. Collins contends his sentence to non-minimum and consecutive prison terms is unconstitutional under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Because Collins’ petitions for post-conviction relief were untimely and he has not demonstrated that the petitions fall within an exception in
I.
{¶ 2} Following a bench trial in 1994, the court found Collins guilty of sexual battery, gross sexual imposition, and rape. The trial court sentenced Collins to serve an
{¶ 3} Collins did not file a direct appeal of his convictions or sentence. However, in September 2006, he filed pro se petitions for post-conviction relief under
{¶ 4} The trial court entered judgment denying Collins’ petitions for post-conviction relief as untimely and without merit. Specifically, the court observed that Foster dealt with the constitutionality of portions of the felony sentencing framework enacted in Senate Bill 2, which became effective July 1, 1996. Because S.B. 2 did not apply in 1994 when Collins was sentenced, the trial court concluded that Foster‘s holdings concerning the sentencing statutes enacted as part of S.B. 2 are inapplicable in this case.
{¶ 5} In a pro se appeal of the denial of his petitions, Collins presents the following assignments of error:
ASSIGNMENT OF ERROR NO. 1:
Minimum sentences are required for first time offenders when the mitigating facts were [NOT] found by a jury, or admitted by the defendant.
ASSIGNMENT OF ERROR NO. 2:
Concurrent sentences are required when the mitigating facts were [NOT] found by a jury, or admitted by the defendant.
{¶ 6} Because Collins’ assignments of error are interrelated, we will discuss them together.
{¶ 7} Appellate courts use a de novo standard of review when reviewing a trial court‘s dismissal or denial of a petition for post-conviction relief without a hearing. See, e.g., State v. Cottrill, Pickaway App. No. 06CA20, 2006-Ohio-6943, at ¶ 11; State v. Gibson, Washington App. No. 05CA20, 2005-Ohio-5353, appeal not allowed, 108 Ohio St.3d 1439, 2006-Ohio-421. Thus, we will independently review the record, without deference to the trial court‘s decision.
{¶ 8}
{¶ 9} Generally if there was no direct appeal, a defendant must file a petition for post-conviction relief no later than 180 days after the expiration of the time for filing an appeal. See
{¶ 10}
{¶ 11} Unless the defendant makes the showings required by
{¶ 12} Collins’ petition for post-conviction was clearly untimely, having been filed 12 years after the time expired for filing a direct appeal in this case. Because the petition was untimely, Collins had to satisfy the criteria set forth in
{¶ 13} In Foster, the Ohio Supreme Court found that portions of the comprehensive sentencing structure enacted in Senate Bill 2 [“S.B. 2“], effective July 1, 1996, are unconstitutional. The Court held to the extent that they required judicial factfinding before imposition of a consecutive sentence or a sentence greater than the maximum term authorized by a jury verdict or admission of the defendant,
{¶ 14} Additionally, in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, the United States Supreme Court restricted its holdings in Blakely and Apprendi to cases on direct review. Similarly, in Foster, the Ohio Supreme Court limited application of its holdings to cases on direct review or not yet final. Id. at ¶ 106. An appeal from a denial of a petition for post-conviction relief is not a direct appeal from the conviction. It is an appeal from a collateral civil proceeding. State v. Gopp, Wayne App. No. 06CA0034, 2006-Ohio-5477, at ¶ 10. Accordingly, Blakely, Apprendi, and Foster are inapplicable. State v. Pryor, Fairfield App. No. 06CA28, 2006-Ohio-6724, at ¶ 13; State v. Williams, Franklin App. No. 05AP-339, 2006-0hio-2197, at ¶ 28. And, because Collins’ petition is not based on a new federal or state right that applies retroactively to him, he has not satisfied the criteria set forth in
{¶ 15} Because Collins’ petition for post-conviction relief was premised on Foster, which the trial court correctly concluded was inapplicable in this case, the trial court did not err in denying the petition without a hearing.
{¶ 16} Accordingly, we overrule appellant‘s assignments of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J. Kline, J.: Concur in Judgment and Opinion.