{¶ 3} On May 24, 1999, this court affirmed appellant's conviction and sentence. On October 30, 2002, the Ohio Supreme Court affirmed the conviction on all counts, but vacated the death penalty and remanded the matter to the trial court for resentencing.
{¶ 4} On December 9, 2004, the trial court sentenced appellant to thirty years to life in prison, to run consecutive to all other sеntences. Via Judgment Entry of January 10, 2005, the trial court entered judgment reflecting the sentence. Appellant filed an appeal on January 4, 2005.
{¶ 5} On February 17, 2005, the trial court appointed appellate counsel, and counsel requested an extension of time to submit a brief. Via an Order of February 28, 2005, this Court granted counsel until April 11, 2005 to submit a brief and through March 21, 2005 to supplement the record with transcripts. On April 1, 2005, appellant voluntаrily dismissed the appeal.
{¶ 6} Appellant filed a post-conviction petition on August 26, 2005, and an amended post-conviction brief, instanter on November 10, 2005.
{¶ 7} On January 5, 2006, the trial court dismissed appellant's post-conviction petition, without hearing. Appellant now appeals, assigning as error:
{¶ 8} "I. THE TRIAL COURT WRONGFULLY DISMISSED THE POST PETITION FOR BEING FILED OUT-OF-TIME ON CLEARLY ERRONEOUS FACTS AND ALLOWED THEM TO SERVE AS BASIS FOR THE DISMISSAL.
{¶ 9} "II. THE TRIAL COURT ABUSED IT'S DISCRETION BY DISMISSING THE POST CONVICTION PETITION FOR BEING FILED OUT-OF-TIME IN DISREGARD OF THE RECORD, STATE STATUTE, AND THIS COURT'S PRIOR ORDER.
{¶ 10} "III. THE TRIAL COURT ABUSED IT'S DISCRETION BY PREDICATING AND TAKING ADVANTAGE OF THE INTOLERABLE ACCESS TO LEGAL SERVICES AND MATERIALS WHEN IT DISMISSED THE POST CONVICTION PETITION FOR BEING FILED OUT-OF-TIME WHEN THE VERY CAUSES FOR IT'S "HELD" LATE FILING DATE WERE CITED IN THE PETITION'S 20TH CLAIM FOR RELIEF.
{¶ 11} "IV. THE TRIAL COURT ERRORED/ABUSED IT'S DISCRETION BY HOLDING CLAIMS 1-19 OF THE POST CONVICTION PETITION HAD BEEN PREVIOUSLY RAISED AND AFFIRMED ADOPTING THE STATE'S DEFENSE, WITHOUT A PER SE REVIEW TO ENFORCE THE IMPLIED APPLICATION OF RES JUDICATA.
{¶ 12} "V. THE TRIAL COURT ERRORED/ABUSED IT'S DISCRETION BY ALLOWING THE STATE TO PARTICIPATE IN THE POST CONVICTION PROCEEDINGS BY IT'S HOLDING THAT THE RULES APPLICABLE TO IT'S PARTICIPATION WERE BUT DIRECTORY AND NOT MANDATORY; WHEREBY MAKING MOOT, RETROACTIVELY, THE APPELLANT'S MOTION FOR SUMMARY JUDGEMENT [SIC].
{¶ 13} "VI. THE TRIAL COURT ERRORED/ABUSED IT'S DISCRETION BY DISMISSING AND DISALLOWING THE APPELLANT ANY DISCOVERY, SCIENTIFIC OR MEDICAL EXPERTS, EVIDENTIARY HEARING, COUNSEL OR RIGHT TO DEPOSE WITNESSES."
{¶ 14} All six of appellant's assignments of error raise common and interrelated issues; therefore, we will address the arguments together.
{¶ 15} Appellant argues the trial court erred in dismissing his petition for post-conviction relief without holding a hearing.
{¶ 16} In reviewing a trial court's denial of appellant's petition for post-conviction relief, absent a showing of abuse of discretion, we will not overrule the trial court's finding if it is supported by competent and credible evidence. State v. Mitchell (1988),
{¶ 17} A petition for post-conviction relief is a means to reach constitutional issues, which would otherwise be impоssible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. Although designed to address claimed constitutional violations, the post-conviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Calhoun (1999),
{¶ 18} R.C. Section
{¶ 19} "(A)(1)(a) Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the persоn's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, and any person who has been convicted of a criminal offense that is a felony, who is an inmate, and for whom DNA testing that was performed under sections
{¶ 20} " * * *
{¶ 21} "(4) A petitioner shall state in the original or amended petition filed under division (A) of this section all grounds for relief claimed by the petitioner. Except as provided in section
{¶ 22} " * * *
{¶ 23} "(C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed underdivision (A) of this section, the court shall determine whether thereare substantive grounds for relief. In making suсh a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.
{¶ 24} " * * *
{¶ 25} "(E) Unless the petition and the files and records of the caseshow the petitioner is not entitled to relief, the court shall proceedto a prompt hearing on the issues even if a direct appeal of the case ispending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court."
{¶ 26} (Emphasis added.)
{¶ 27} A criminal defendant who seeks to challenge his conviction through a pеtition for post-conviction relief is not automatically entitled to an evidentiary hearing. State v. Calhoun,
{¶ 28} As set forth in the statement of the case, supra, appellant filed a direct appeal from his sentence following the Suprеme Court's remand for resentencing on January 4, 2005. The Judgment Entry from which appellant appeals was filed on January 10, 2005. Appellant voluntarily dismissed the appeal on April 1, 2005.
{¶ 29} RC.
{¶ 30} "(2) Except as otherwise provided in section
{¶ 31} (Emphasis added.)
{¶ 32} The trial court concluded appellant's appeal after rеsentencing was a nullity due to his voluntary dismissal of the same. R.C.
{¶ 33} Appellant maintains his petition for post-conviction relief was filed on August 22, 2005, not November 10, 2005, the date he filed an amended post-conviction brief, instanter. Appellant asserts the trial court disregarded its February 28, 2005 order extending the time deadline for appellant to supplement the record on his direct appeal. Including this extension, appellant contends the deadline for his filing a petition for post-conviction relief was September 13, 2005, not August 10, 2005.
{¶ 34} We disagree with appellant's argument. As set fоrth above, 2953.21(A) clearly afforded appellant 180 days from the date the trial transcripts were filed in his first direct appeal or no later than 180 days after the expiration of time for filing the appeal. Because the trial transсript was filed in this Court before our decision affirming appellant's conviction and sentence on May 24, 1999,1 appellant's petition for post-conviction relief is clearly untimely. The fact appellant was resentenced on January 10, 2005, does not serve to restart the clock for post-conviction relief purposes as to any claims attacking his underlying conviction. Assuming, arguendo, it did restart the clock, аppellant's petition would still be untimely. Appellant's appeal of the trial court's resentencing was voluntarily dismissed. Any extension of time to file the transcript therein is of no import in computing the timeliness of thе instant post-conviction relief petition. Because no transcript had been filed before appellant voluntarily dismissed that appeal, we treat the procedural posture to be the funсtional equivalent of no appeal having been taken. Pursuant to R.C.
{¶ 35} Having so found, we find it unnecessary to address the trial court's alternative reason for dismissing appellant's petition.
{¶ 36} Appellant's assignments of error are overruled.
{¶ 37} The judgment of the trial court is affirmed.
By: Hoffman, P.J., Farmer, J. and Boggins, J. concur