STATE OF OHIO v. TERRY L. CURRENT
C.A. CASE NO. 2012 CA 33
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
May 10, 2013
2013-Ohio-1921
T.C. NO. 09CR194, 09CR229; (Criminal appeal from Common Pleas Court)
Rendered on the 10th day of May, 2013.
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
TERRY L. CURRENT, #619576, Marion Correctional Institute, P. O. Box 57, Marion, Ohio 43302
Defendant-Appellant
FROELICH, J.
{¶ 1} Terry L. Current appeals from a judgment of the Champaign County
I.
{¶ 2} In August 2009, Current was indicted on one count of having weapons while under disability and two counts of receiving stolen property. State v. Current, Champaign C.P. No. 2009 CR 194. The next month, in Champaign C.P. No. 2009 CR 229, Current was indicted on possession of criminal tools (two counts), complicity to breaking and entering (two counts), complicity to theft (three counts), grand theft, receiving stolen property, complicity to burglary, and complicity to grand theft.
{¶ 3} On December 7, 2009, Current pled guilty to having weapons while under disability in Case No. 2009 CR 194 and complicity to breaking and entering in Case No. 2009 CR 229. In exchange for the pleas, the State dismissed the two counts of receiving stolen property from his first case and the remaining ten counts from his second case. On January 14, 2010, the trial court sentenced Current to four years for having weapons while under disability and twelve months for complicity to breaking and entering, to be served concurrently. Current did not appeal from his convictions.
{¶ 4} In August 2010, Current filed a motion to withdraw his guilty plea, arguing that the State failed to uphold its promise of a one-year sentence in exchange for his testimony against his co-defendant, Carl Simons. The trial court denied the motion without a hearing, and Current appealed. In April 2012, we affirmed the trial court‘s ruling. State v. Current, 2d Dist. Champaign No. 2010 CA 31, 2012-Ohio-1851.
{¶ 5} On April 9, 2012, shortly before we ruled on his appeal from the denial of his motion to withdraw his plea, Current filed a petition to vacate or set aside his conviction, raising three claims. First, he asserted that his counsel rendered ineffective assistance by failing to “thoroughly examine incomplete transcript” for use on appeal. Current noted that “crucial statements were deleted from the transcript, and from the record pertaining to the sentencing hearing.” Second, Current challenged the accuracy of the transcript of his sentencing hearing. He cited a discrepancy between the name of the court reporter on the transcript and information that another court reporter had done the transcription. Third, Current alleged that the prosecutor engaged in misconduct by not telling him that defense counsel was under indictment in a separate matter and that defense counsel‘s attorney had been the victim of a crime. Current requested appointment of counsel and expert assistance with his petition.1
{¶ 6} On May 1, 2012, the trial court denied Current‘s motions for appointment of counsel and for expert assistance. The court gave the State until May 8 to file an answer, and it gave both parties until May 22 to file any motion for summary judgment. The court stated that any motion for summary judgment “shall address the timeliness of the petititon.”
{¶ 7} The State did not file an answer. However, on May 22, 2010, the State moved for summary judgment on Current‘s petition. It argued that Current‘s petition was untimely and that his claims were not cognizable under
{¶ 8} Current responded to the State‘s motion, asserting that his petition was timely. He argued that his petition was filed within 180 days of the completion of the record in his appeal of the denial of his motion to withdraw his plea. Current claimed that the trial court had jurisdiction to review the merits of his petition, and he filed an addendum with evidence to support his petition.
{¶ 9} On July 10, 2012, the trial court granted the State‘s motion for summary judgment and dismissed Current‘s petition. The court “adopt[ed] and incorporat[ed]” the State‘s memorandum in support of its motion, and the court further found that (1) the petition was not timely and was not entitled to tolling or an extension of the filing deadline, and (2) Current was not unavoidably prevented from discovering the facts upon which he relied, he did not identify any new right recognized by the United State Supreme Court, and he did not show that, but for the constitutional error he asserted, no reasonable factfinder would have found him guilty.
{¶ 10} Current appeals from the trial court‘s judgment.
II.
{¶ 11} Current‘s sole assignment of error states:
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT‘S DUE PROCESS RIGHTS BY INSTRUCTING THE STATE TO RAISE THE TIMELINESS OF THE APPELLANT‘S POST CONVICTION PETITION, AND BY ERRANTLY DISMISSING THE PETITION AS “UNTIMELY.”
{¶ 12} An appellate court reviews a trial court‘s denial of a petition for post-conviction relief under an abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 13} A post-conviction proceeding is not an appeal of a criminal conviction; it is a collateral civil attack on the judgment. Gondor at ¶ 48, citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994);
{¶ 14} Petitions for post-conviction relief are governed by
{¶ 15} Current first argues that the trial court improperly instructed the parties to
{¶ 16} We disagree with Current‘s interpretation of the trial court‘s entry. Trial courts lack jurisdiction to consider an untimely petition for post-conviction relief, unless the untimeliness is excused under
{¶ 17} When a direct appeal of the judgment of conviction has been taken, a petition for post-conviction relief must be filed “no later than one hundred and eighty days after the date on which the trial transcript is filed in the court of appeals * * *”
{¶ 18} Current claims that his petition was timely, because he filed it 178 days after the transcripts were filed in his appeal. However, the judgment from which Current appealed was the denial of his motion to withdraw his plea. Under
{¶ 19} Current pled guilty in December 2009, and the trial court sentenced him and entered a judgment of conviction on January 14, 2010. Current did not file a direct appeal from that conviction. Accordingly, under
{¶ 20} Pursuant to
{¶ 21} Current offers no explanation for the late filing of his petition. Although the alleged errors in the sentencing transcript apparently did not come to light until the transcripts were prepared for the appeal concerning his motion to withdraw his plea, nothing prevented Current from obtaining a transcript at an earlier time. And Current was aware of
{¶ 22} Because Current has not established either of the conditions that could excuse an untimely filing, the trial court was without jurisdiction to entertain his petition for post-conviction relief. When a trial court lacks jurisdiction to consider an untimely petition, it is not necessary for the court to hold an evidentiary hearing on that petition. Johnson at ¶ 18. The trial court properly granted the State‘s motion for summary judgment and dismissed Current‘s petition for post-conviction relief.
III.
{¶ 23} The trial court‘s judgment will be affirmed.
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Jane A. Napier
Terry L. Current
Hon. Roger B. Wilson