State v. GoppState v. Gopp
This сause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Clayton Gopp, appeals from his sentencing in the Wayne County Court of Common Pleas. This Court affirms.
I.
{¶ 2} On January 13, 2003, Appellant pled guilty to two counts of rape, in violation of
{¶ 3} On August 20, 2004, Appellant filed a petition to vacate or set aside his sentence, аsserting that his sentence was void under Blakely v. Washington (2004), 542 U.S. 296, because the judge made additional findings to impose maximum, consecutive sentences. On September 16, 2004, the trial cоurt denied Appellant‘s motion to vacate. On September 17, 2004, Appellant filed a motion for summary judgment, arguing that the State‘s response to his petition tо vacate his sentence raised no genuine issue of material fact and that he was entitled to judgment on his petition. Thereafter, on September 28, 2004, Aрpellant filed a notice of invalid order and motion to comply with the law, asserting that the trial court failed to properly consider his constitutional attack on Ohio‘s sentencing laws. The trial court entered judgment on November 19, 2004, denying Appellant‘s motion to comply and finding that Appellant‘s twenty-year sеntence was within the statutory sentencing range permitted by law. In addition, the trial court expressly held Blakely inapplicable to Appellant‘s sentence. Aрpellant appealed the trial court‘s order. This Court dismissed Appellant‘s appeal as untimely.
{¶ 4} On April 17, 2006, Appellant filed a motion for re-sentencing, arguing that his sentences are void pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, because they were imposed under unconstitutional and void statutes. The trial court denied Appellant‘s motion on April 24, 2006. Appellant timely appealed the trial court‘s order, raising one assignment of error for our review.
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT‘S SUBSTANTIAL RIGHTS BY FAILING AND REFUSING TO ORDER APPELLANT (RE)SENTENCED AS THE SENTENCE PREVIOUSLY IMPOSED WAS IMPOSED PURSUANT TO A STATUTE THAT IS VOID FOR DEPRIVING APPELLANT OF HIS SIXTH AMENDMENT JURY-TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHTS, AND IS THEREFORE VOID ITSELF, CAUSING [APPELLANT] TO BE IMPRISONED WITHOUT A VALID PRISON SENTENCE.”
{¶ 5} In Appellant‘s sole assignment of error he contends that the trial court erred by failing to re-sentence him as his sentence was imposed pursuant to an unconstitutional statute. We disagree.
{¶ 6} Because Appellant asserted constitutional violations in his motion, which was filed subsequent to his direct appeal, we construe the motion as а petition for post-conviction relief as provided in
{¶ 7} In Reynolds, the Ohio Suрreme Court held that “[w]here a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 8} Appellant‘s motion was filed on May 14, 2006 — nearly three years after the expiration of the time to file an appeаl — and was therefore, clearly untimely.
“(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsеquent to the period prescribed in division (A)(2) of section
“(b) The petitioner shows 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 or, if the claim challenges a sentence of death that, but for сonstitutional error at the sentencing hearing, no reasonable factfinder would have found the petitioner eligible for the death sentence.”
{¶ 9} Appellant contends that, under the grounds enunciated in Foster, his sentеnce is now void as it was imposed pursuant to a statute that is unconstitutional. In Foster, the Court found that
{¶ 10} As stated herein, in Booker, supra, the United States Supreme Court limited its holdings in Blakely and Apprendi to cases on direct review. Similarly, in Foster, the Ohio Supreme Court restricted retroactive application of its holding to cases on direct review. Appellant‘s case is before us on appeal from a denial of his petition for post-conviction relief, not from direct apрeal. As such, Appellant has failed to meet his burden under
III.
{¶ 11} Appellant‘s sole assignment of error is overruled. The judgment of the Wayne County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.