2006 Ohio 5155 | Ohio Ct. App. | 2006
{¶ 2} Defendant-Appellant, Johnny Hall, Jr., appeals the judgment of the Putnam County Common Pleas Court denying his post-conviction motion to vacate and correct his sentence. On appeal, Hall asserts that the trial court erred by denying his post-conviction motion because his sentence violates his Sixth Amendment right to a jury and the United States Supreme Court principles set forth in Apprendi v. New Jersey (2000),
{¶ 3} In October of 2004, Hall pled guilty to one count of trafficking in drugs in violation of R.C.
{¶ 4} In May of 2005, Hall moved for leave to file a delayed appeal. This court denied that motion, finding that Hall did not set forth a sufficient reason for failing to timely file a notice of appeal from the December 2004 judgment. See State v. Hall (July 7, 2005), 3d Dist. No. 12-05-11. On April 28, 2006, Hall filed a post-conviction motion to vacate and correct his sentence. On May 2, 2006, the trial court denied the motion. It is from this judgment Hall appeals, presenting the following assignment of error for our review.
{¶ 5} In his sole assignment of error, Hall contends that the trial court's imposition of the ten-year maximum mandatory term violates his Sixth Amendment right to a jury. Specifically, Hall asserts that the trial court abused its discretion in denying his post-conviction motion because the trial court's findings at sentencing were based on facts not found by a jury, nor admitted to by Hall, and thus the sentence was unconstitutional underApprendi, Blakely, and Foster, supra.
{¶ 6} This Court dealt with a similar argument in State v.Troglin (2006), 3d Dist. No. 14-05-56,
[In Blakely], the U.S. Supreme Court reaffirmed itsprevious holding in Apprendi that "[o]ther than the fact of aprior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury, and proved beyond a reasonable doubt." [542 U.S.] at 490.In Blakely, the Court held that the relevant "statutorymaximum" for Apprendi purposes "is the maximum sentence ajudge may impose solely on the basis of the facts reflected inthe jury verdict or admitted by the defendant." [Id.] at 303-4.Thus, pursuant to Blakely, a trial court is prohibited fromusing factual findings other than those reflected in the juryverdict or admitted by the defendant to increase an offender'ssentence.
Troglin,
{¶ 7} The Ohio Supreme Court addressed the applicability ofApprendi and Blakely to Ohio's felony sentencing scheme inFoster, supra. The Foster Court held that two of the statutes applicable to the imposition of Halls' prison sentence were unconstitutional in violation of the Sixth Amendment underBlakely. First, the Supreme Court held that R.C.
{¶ 8} The Supreme Court went on to hold that sentences imposed based on these unconstitutional statutes were void. Id. at ¶ 103. The Supreme Court then ordered that cases "pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion." Id. at ¶ 104. Subsequently, this Court found that "`because the Foster
decision rendered sentences based on these unconstitutional statutes void, a person was permitted to appeal his sentence by way of a petition for post-conviction relief.'" Troglin,
{¶ 9} The post-conviction statute, R.C.
{¶ 10} Pertinent to the instant case, R.C.
{¶ 11} In the case sub judice, Hall did not file a direct appeal to his conviction. Instead, he moved for a delayed appeal, which this Court denied. Hall did not file his post-conviction motion until April 28, 2006, well outside of the 180-day time period under R.C.
{¶ 12} Furthermore, even though Hall may or may not have had a newly recognized federal right, his asserted claim would not alter the finding of guilt at trial, and therefore his petition did not fall under the exception in R.C.
{¶ 13} Based on the foregoing, the trial court lacked jurisdiction to consider Hall's post-conviction motion. Accordingly, Hall's assignment of error is overruled.
{¶ 14} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed. Bryant, P.J., and Cupp, J., concur.