State v. DeatonState v. Deaton
OPINION
Rendered on the 31st day of May, 2019.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
KORT GATTERDAM, Atty. Reg. No. 0040434 and DAVID F. HANSON, Atty. Reg. No. 0059580, 280 Plaza, Suite 1300, 280 North High Street, Columbus, Ohio 43215 Attorneys for Defendant-Appellant
{¶ 1} The trial court dismissed Appellant James Deaton‘s petition for postconviction relief based upon its conclusion that the petition was not timely filed. The trial court also concluded that the petition, even if timely filed, was barred by the doctrine of res judicata. Deaton‘s petition was timely filed, and, as conceded by the State of Ohio, res judicata did not act to bar the petition. The trial court‘s judgment is reversed and remanded for consideration of the merits of Deaton‘s petition.
Facts and Procedural History
{¶ 2} Deaton was convicted and sentenced for felonious assault (deadly weapon) with an attached firearm specification, abduction with an attached firearm specification, having weapons under disability, and other offenses. After the merger of certain counts, the trial court sentenced Deaton to a 15-year prison term.
{¶ 3} Deaton‘s convictions resulted from an encounter with his estranged wife. It was not disputed that, during the encounter, the wife‘s vehicle was twice struck by bullets fired from a revolver Deaton possessed
{¶ 4} Deaton appealed the convictions, and appellate counsel was appointed. Appellate counsel filed a praecipe for transcript which requested the preparation and filing of a transcript of the final pretrial hearing and of the three-day jury trial. The requested transcripts were filed in this court on August 24, 2016. Before any briefs had been filed, appellate counsel sought leave to withdraw as Deaton‘s attorney. The motion was granted. Shortly thereafter, new counsel entered an appearance on Deaton‘s behalf. New counsel filed a motion to supplement the appellate record with a transcript of Deaton‘s sentencing hearing and filed a second praecipe for transcript. The motion stated that, “due to unknown circumstances, the record previously submitted did not include the Sentencing Hearing transcript.” We sustained the motion. The sentencing hearing transcript was filed in this court on December 16, 2016. We ultimately affirmed Deaton‘s convictions. State v. Deaton, 2d Dist. Montgomery No. 27181, 2017-Ohio-7044.
{¶ 5} On December 15, 2017, Deaton filed a pro se petition requesting postconviction relief under
{¶ 6} The trial court dismissed Deaton‘s petition. The trial court determined that the petition was filed beyond the statutory limitation period, that no statutory exception acted to save the late filing, and, as such, the court was without jurisdiction to consider Deaton‘s petition. This appeal followed.
Analysis
{¶ 7} Deaton asserts three assignments of error as follows:
THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLANT‘S PETITION UNTIMELY AS APPELLANT FILED HIS PETITION WITHIN THE STATUTORY TIMEFRAME.
THE TRIAL COURT ABUSED ITS DISCRETION IN APPLYING RES JUDICATA TO APPELLANT‘S GROUND FOR RELIEF IN HIS POST-CONVICTION PETITION AS APPELLANT PRESENTED EVIDENCE DEHORS THE RECORD CONTAINING SUFFICIENT OPERATIVE FACTS TO DEMONSTRATE THAT TRIAL COUNSEL WAS INEFFECTIVE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION, AND
R.C. 2953.21 .THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED APPELLANT‘S MOTION FOR LEAVE TO AMEND IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTION 10 AND 16, OHIO CONSTITUTION; AND
R.C. 2953.21 .
Petition Was Timely Filed
{¶ 8}
A trial court is without jurisdiction to consider a postconviction relief petition if it is filed outside the limitation period and the petitioner fails to satisfy
{¶ 9} The trial court, not realizing that
{¶ 10} While conceding the trial court‘s error, the State nonetheless asserts that Deaton‘s petition was not timely filed. This argument rests upon the contention that the trial transcript was filed on August 24, 2016, the date that the transcripts of the final pretrial hearing and the jury trial were filed in the court of appeals in accordance with the first praecipe. If the August 24 filing began the limitation period clock, the petition was filed late,
{¶ 11} Resolution of which date controls — August 24, 2016 or December 16, 2016 — turns upon the meaning of the term “trial transcript” set forth in
{¶ 12} In the meantime, Barker had filed a petition for postconviction relief. The trial court, without timeliness of the petition being raised, dismissed Barker‘s petition on substantive grounds. Barker, once again, appealed. The State, on appeal, asserted that the limitation period began to run when, in the first appeal, the plea and sentencing hearing transcripts were filed in the court of appeals. The Barker opinion rejected the State‘s argument concluding that “Barker‘s trial transcripts consisted of those transcripts of the proceedings before the trial court that were ‘necessary for inclusion in the record [on appeal].‘” Barker ¶ 12, quoting
{¶ 13} In support of its interpretation of the “trial transcript” and its filing, the Barker court noted that the Ohio Supreme Court, in State v. Everette, 129 Ohio St.3d 317, 2011-Ohio-2856, 951 N.E.2d 1018, “defined the term ‘trial transcripts’ with reference to
{¶ 14} Consistent with Barker, we conclude that the term “trial transcript” as used in
{¶ 15} We conclude that the sentencing hearing transcript was objectively necessary for inclusion in the appellate record, and that the requested record supplementation, which we granted, was not an attempt to extend the postconviction limitation period. We realize that, in the direct appeal, Deaton did not assert a sentencing error. This, however, does not change the fact that the sentencing hearing is an integral part of a criminal case. Accordingly, we conclude that the
Res Judicata Did Not Bar the Petition
{¶ 16} The trial court also concluded that res judicata barred Deaton‘s ineffective
No Need to Resolve Whether the Trial Court Erred by Overruling Deaton‘s Motion to Amend the Petition
{¶ 17} Deaton, in his final assignment of error, asserts that the trial court erred by overruling his motion to amend his petition for postconviction relief. Since the case has to be remanded to the trial court, we conclude that there is no necessity to rule upon this assignment of error. Upon remand, Deaton may refile the motion to amend the petition. If he does so, the trial court can determine, in light of the need to decide the petition upon its merits, whether it is appropriate to allow the petition to be amended.
Conclusion
{¶ 18} Deaton‘s first and second assignments of error are sustained. The judgment of the trial court is reversed, and the case is remanded to the trial court for consideration of the petition for postconviction relief on its merits.
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Kort Gatterdam
David F. Hanson
Hon. Timothy N. O‘Connell