State v. EspinalState v. Espinal
Rendered on November 27, 2012
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbaсher, for appellee.
Jose I. Espinal, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Defendant-appellant, Jose I. Espinal, appeals from a judgment of the Franklin County Court оf Common Pleas denying his motion to correct sentence. For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} Appellant was indicted on Dеcember 31, 2009 with three counts of rape. On January 5, 2011, appellant entered a plea of guilty to two counts of rapе in violation of
{¶ 3} On February 13, 2012, appellant filed a motion to correct sentence. In this motion, aрpellant argued he was entitled to have his sentence corrected in accordance with 2011 Am.Sub.H.B. No. 86, which amended Ohiо‘s criminal sentencing laws. Stating that H.B. No. 86 does not apply to sentences imposed prior to its effective date, the trial court denied appellant‘s motion via entry filed March 27, 2012.
II. ASSIGNMENTS OF ERROR
{¶ 4} This appeal followed and appellant brings the following four assignments of error for our review:
- [1.] Whether the trial court abused its discretion by applying improper sections of the revised code.
- [2.] Whether the trial court abused its discretion in failing to merge both counts as mandated by law.
- [3.] Whether the trial court abusеd its discretion under the abuse of discretion standard.
- [4.] Whether the trial court abused its discretion in ruling House Bill 86 is not retroactive.
III. ANALYSIS
{¶ 5} We сonstrue appellant‘s motion to correct sentence as a petition for postconviction relief. State v. Timmons, 10th Dist. No. 11AP-895, 2012-Ohio-2079, ¶ 6, citing State v. Reynolds, 79 Ohio St.3d 158, 160 (1997); State v. McAllister, 10th Dist. No. 06AP-843, 2007-Ohio-1816, ¶ 6 (vaguеly titled motion to correct or vacate sentence should be construed as a motion for postconviction relief under
{¶ 6} The postconvictiоn relief process is a collateral civil attack on a criminal judgment, not an appeal of the judgment. State v. Steffen, 70 Ohio St.3d 399, 410 (1994). It is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence suppоrting those issues is not contained in the trial court record.
{¶ 7}
{¶ 8} A trial court lacks jurisdiction to entertain an untimely petition for postconviсtion relief unless a petitioner demonstrates that one of the exceptions in
{¶ 9} Appellant has made no attempt to argue, much less establish, that any of the exceptions applied to his petition. With regard to
{¶ 10} Because appellant failed to establish the applicability of an exception that would allow the trial court to consider his untimely petition, the trial court lacked jurisdiction to entertain his petition for postconviction relief.1 Mangus at ¶ 13, citing State v. Russell, 10th Dist. No. 05AP-391, 2006-Ohio-383, ¶ 10. Accordingly, the trial court did not err in denying appellant‘s petition, though technically the petition should have been dismissed for lack of jurisdiction. State v. Elkins, 10th Dist. No. 10AP-6, 2010-Ohio-4605, ¶ 17 (though the postconviction petition should have been dismissed for lack of jurisdiction, no error in denying the same); Mangus at ¶ 13 (affirming denial of postconviction petition though it should have been dismissed for lack of jurisdiction); State v. Holton, 4th Dist. No. 06CA28, 2007-Ohio-2251, ¶ 19.
IV. CONCLUSION
{¶ 11} Our disposition of the jurisdictional issue renders moot appellant‘s assignments of error, which address the merits of his petition. Elkins at ¶ 17; Mangus at ¶ 14; Hollingsworth at ¶ 11. Accordingly, the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN, P.J., and TYACK, J., concur.