State v. CourtneyState v. Courtney
{¶ 1} This is an appeal from a Hocking County Common Pleas Court re-sentencing entry and judgment. A jury found Marion F. Courtney, Jr., defendant below and appellant herein, guilty of rape in violation of
{¶ 2} Appellant assigns the following error for review:
“AT THE RESENTENCING HEARING, IMPOSITION OF GREATER THAN THE MINIMUM TERMS FOR AN INDIVIDUAL WHO HAD NOT PREVIOUSLY SERVED TIME IN PRISON, AND MAKING THOSE TERMS CONSECUTIVE, VIOLATED THE SIXTH AMENDMENT AND DUE PROCESS GUARANTEES OF THE FEDERAL CONSTITUTION AND THE EQUIVALENT GUARANTEES UNDER THE OHIO CONSTITUTION.”
{¶ 4} On July 3, 2006, appellant filed a pro se “petition for post conviction relief” and claimed that the sentencing statutory scheme was unconstitutional pursuant to the Ohio Supreme Court‘s decision in State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-Ohio-856. Appellant asked that his sentence be vacated and that he be re-sentenced pursuant to law.
{¶ 5} The trial court granted his “petition” and held a sentencing hearing. On August 30, 2006, the court imposed the same prison terms and ordered them to be served consecutively. This appeal followed.
I
{¶ 7} First, appellant did not raise this issue at the August 23, 2006 re-sentencing hearing. The failure to do so amounts to a waiver of that issue on appeal. State v. Close, Washington App. No. 03CA30, 2004-Ohio-1764, at ¶ 19; State v. Smith, Highland App. No. 01CA13, 2002-Ohio-3402, at ¶ 18; In re Cazad, Lawrence App. No. 04CA36, 2005-Ohio-2574, at ¶ 48.
{¶ 8} Second, even if the issue had been properly preserved for appeal, we have already considered whether sentencing after Foster violates ex post facto and due process guarantees and concluded that it does not. See State v. Grimes, Washington App. No. 04CA17, 2006-Ohio-6360, at ¶ ¶ 9-11. Nothing in appellant‘s brief prompts us to re-consider that decision and we continue to adhere to it today. We further point out that other courts have reached the same conclusion and found no ex post facto violation. See e.g. State v. Elswick, Lake App. No. 2006-L-75, 2006-Ohio-7011, at ¶ ¶ 16-30; State v. Gibson, Franklin App. No. 06AP-509, 2006-Ohio-6899, at ¶ ¶ 16-18; State v. McGhee, Shelby App. No. 17-06-05, 2006-Ohio-5162, at ¶ ¶ 11 13-20.
{¶ 9} Accordingly, appellant‘s assignment of error is meritless. Our inquiry does not end at this juncture, however.
{¶ 10} Generally, when no appeal is taken from a judgment of conviction and sentence, a postconviction relief petition must be
{¶ 11} Generally, trial courts are prohibited from considering petitions for postconviction relief filed outside the prescribed statutory time limits. See
“(a) Either 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, or, 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.(b) 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.”
Appellant made no attempt in his petition to come within the confines of this exception and we are not persuaded that the
{¶ 12} We also point out that insofar as Foster is concerned, the Ohio Supreme Court stated that only those cases pending on direct appeal at the time Foster was decided need to be remanded for re-sentencing. 2006-Ohio-856, at ¶ 104. The case sub judice was not pending on direct appeal at the time Foster was decided. Thus, Foster does not apply. See State v. Scuba, Geauga App. No. 2006-G-2713, 2006-Ohio-6203, at ¶ 19 (Foster did not apply where direct appeal was already “final“); State v. Carter, Clinton App. No. Ca2006-03-010, 2006-Ohio-4205, at ¶ ¶ 5-7 (Foster did not apply because appeals were not pending, they were final).
{¶ 13} In any event, we conclude that appellant‘s petition for postconviction relief was out of rule, that appellant did not establish sufficient reason for the petition to be considered late, and that the trial court had no jurisdiction to consider the petition and should not have re-sentenced appellant pursuant to Foster. Accordingly, the trial court‘s August 30, 2006 entry is hereby vacated and the court‘s original August 22, 2005 judgment is hereby re-instated.
JUDGMENT VACATED AND PREVIOUS JUDGMENT RE-INSTATED CONSISTENT WITH THE OPINION.
JUDGMENT ENTRY
It is ordered that the judgment be vacated, that the court‘s judgment of August 22, 2005, be reinstated and that 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 Hocking County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to
Harsha, J. Kline, J.: Concur in Judgment Opinion For the Court