State v. FilesState v. Files
Benjamin F. Files, pro se.
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PIETRYKOWSKI, J.
{¶ 1} Benjamin F. Files appeals an August 17, 2011 judgment of the Lucas County Court of Common Pleas that denied his pro se motion to vacate void judgment. Appellant filed the motion on June 16, 2011. The motion is directed against a July 9, 2010 judgment of the court. Under the judgment, appellant was sentenced on convictions
{¶ 2} On the conviction for felonious assault with a firearm specification, the trial court sentenced appellant to serve a six-year prison term for the felonious assault and an additional three-year term on the firearm specification. On the second felonious assault conviction, the trial court imposed a four-year prison sentence. The court ordered that the sentences run consecutively, for a total period of incarceration of 13 years.
{¶ 3} Appellant asserts two assignments of error on appeal:
Assignment of Error No. I: The trial court erred by sentencing defendant-appellant to consecutive sentences without holding an allied offenses hearing pursuant to
R.C. 2941.25(A) , which would have proven allied offenses of similar import, thus violating defendant-appellant’s right to due process of law and equal protection under the law in violation of theOhio Constitution art. I, §16 andart. I, § 2 ; and in violation of theUnited States Constitution Amendment XIV .Assignment of Error No. II: The trial court erred by denying defendant-appellant access to the trial transcript which was a necessity to this appeal, thus violating defendant-appellant’s right to due process of law and equal protection under law in violation of
App.R. 16(A)(3) ,(6) ,(7) ,(D) , theOhio Constitution art. I, §16 andart. I, § 2 and theUnited States Constitution Amendment XIV .
{¶ 4} The trial court treated the motion to vacate void judgment as a petition for postconviction relief under
{¶ 5} We agree with the trial court that appellant’s motion is a petition for postconviction relief under
{¶ 7} The exceptions to the 180-day filing period provided in
(1) demonstrate either that he was unavoidably prevented from discovering the facts upon which he relied for his claim, or subsequent to the period prescribed in
R.C. 2953.21(A)(2) the United States Supreme Court recognized a new state or federal right that applies retroactively to a person in petitioner‘s position and his or her petition asserts a claim based on that and right; and (2) show, 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.”R.C. 2953.23(A)(1)(a) and(A)(1)(b) . State v. Padilla-Montano, 6th Dist. No. L-05-1099, 2006-Ohio-115, ¶ 13. Accord State v. Brooks, 6th Dist. Nos. L-10-1258 and L-10-1259, 2011-Ohio-5303, ¶ 23.
{¶ 9} Accordingly, we conclude that the trial court did not err in denying appellant’s petition for postconviction relief as it was time barred under
{¶ 10} On consideration whereof, the court finds that substantial justice has been done the party complaining, and the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J. _______________________________
Stephen A. Yarbrough, J. JUDGE CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.