2006 Ohio 6483 | Ohio Ct. App. | 2006
{¶ 2} On December 5, 2002, the Defiance County Grand Jury indicted Appellant on one count of aggravated trafficking in drugs, a violation of R.C.
{¶ 3} Appellant pled not guilty at arraignment. On April 10, 2003, the trial court held a combined change of plea and sentencing hearing. Appellant withdrew his previously tendered pleas of not guilty and entered a plea of guilty to one count of aggravated trafficking in drugs. In exchange, the State of Ohio dismissed the major drug offender specification, amended the indictment as to the weight of the drug, and dismissed the second count of the indictment. The trial court sentenced Appellant to a prison term of nine years, making four years mandatory time.
{¶ 4} A year and a half later, on October 27, 2004, Appellant filed a notice of appeal and a motion for leave to file a delayed appeal, challenging the trial court's failure to make findings under R.C.
{¶ 5} Appellant filed an application for delayed reopening of appeal on June 21, 2005, arguing that R.C.
{¶ 6} On May 18, 2006, Appellant filed a "motion to vacate and correction [sic] of sentence" to challenge his sentence based onApprendi, Blakely, United States v. Booker (2005),
{¶ 7} Appellant now appeals and asserts two assignments of error for our review.
The Trial Court erred when it did not hold an evidentiary hearing and did not resentence the [d]efendant-[a]ppellant, because the [a]ppellant's sentence is void when [h]e was sentenced under sentencing [s]tatutes that have been determined to be unconstitutional under the Ohio Supreme Court's ruling in State V. Foster , supra, and the United States Supreme Court's rulings in Apprendi V. New Jersey , supra, supra, [sic] followed by Ring V. Arizona , supra, followed by Blakely V. Washington , supra.
The Trial Court erred and abused it's [sic] discretion by sentencing the [a]ppellant to a nine (9) year term of imprisonment based upon findings of R.C. §2929.14 (B) and §2929.12 , thus violating the [a]ppellant's Fifth, Sixth and Fourteenth Amendment rights to a [j]ury determining findings of fact that increase a [d]efendant's sentence beyond the [s]tatutory maximum, without admissions from the [d]efendant, nor included within the [i]ndictment, and the term imposed as such should be vacated and corrected to be in compliance with the U.S. Supreme Court's holdings in Apprendi V. New Jersey , supra followed by Ring V. Arizona , supra, and Blakely V. Washington,, [sic] leading the Ohio Supreme Court's ruling in State V. Foster , supra (2006).
{¶ 8} The assignments of error are essentially the same, and in the interest of convenience, they will be considered together.
{¶ 9} Appellant contests the trial court's failure to hold an evidentiary hearing on his motion and the judgment entry denying the motion as being an untimely filed petition for post-conviction relief. Appellee also contends he is entitled to a new sentencing hearing in light of Foster because the trial court retains continuing jurisdiction to vacate and correct a void sentence.
{¶ 10} Appellee contends the trial court did not err and that the petition is time-barred by statute. Should this Court find the petition timely filed, Appellee next argues that it is barred by the doctrine of res judicata. Finally, if this Court were to reach the merits of the petition, Appellee contends Foster is inapplicable for two reasons: (1) The sentence was not the maximum. (2) Appellant was sentenced on only one charge so that there was no consecutive sentence.
{¶ 11} More than three years after sentencing, on May 18, 2006, Appellant filed a pleading captioned, "motion to vacate and correction [sic] of sentence". The trial court interpreted the motion as a petition for post-conviction relief. State v. Reynolds,
{¶ 12} Trial courts have sound discretion in determining whether to hold an evidentiary hearing under R.C.
{¶ 13} The post-conviction relief statute states in pertinent part:
[a]ny 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, * * * 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. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
R.C.
{¶ 14} Final judgment was entered on April 10, 2003 when Appellant pled guilty and was sentenced to nine years in prison. Appellant failed to file a direct appeal, which would have been due on or about May 12, 2003. Counting forward 180 days, Appellant was required to file a petition for post-conviction relief on or about November 10, 2003. Appellant's petition was not filed until May 18, 2006, approximately two and one-half years late. Therefore, Appellant's petition is untimely filed under R.C.
{¶ 15} R.C.
{¶ 16} As to Appellant's argument that the trial court retained continuing jurisdiction to modify his sentence, this Court finds the argument without merit. The record does not contain any filing indicating that Appellant would receive a new sentencing hearing afterFoster. The Ohio Supreme Court specified that Foster operated retroactively to affect only pending cases and those cases on direct appeal. Foster, at ¶¶ 103-104. Ohio law is clear that a trial court does not retain jurisdiction once a sentence has been ordered into execution "except under very limited circumstances." State v. Clark, 8th Dist. No. 82519, 2003-Ohio-3969, at ¶ 20 (citingState v. Garretson (2000),
{¶ 17} In view of the foregoing, the trial court did not err in finding Appellant's petition untimely filed. Since a trial court is not required to consider an untimely petition for post-conviction relief, it did not abuse its discretion when it failed to hold an evidentiary hearing. Both assignments of error are overruled.
{¶ 18} The judgment of the Defiance County Common Pleas Court is affirmed.
Judgment affirmed.
ROGERS and SHAW, JJ., concur.