State v. HaschenburgerState v. Haschenburger
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 05CR00340
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains Prosecutor Gabriel M. Wildman Assistant Prosecutor 21 W. Boardman St. 6th Floor Youngstown, Ohio 44503-1426
For Defendant-Appellant Attorney J. Gerald Ingram 7330 Market Street6 Youngstown, Ohio 44512-5610
Attorney John B. Juhasz 7081 West Boulevard, Suite 4 Youngstown, Ohio 44512
JUDGES: Hon. Gene Donofrio Hon. Joseph J. Vukovich Hon. Cheryl L. Waite
Dated: December 10, 2009
{¶1} Defendant-appellant William Haschenburger appeals the decision of the Mahoning County Common Pleas Court denying his postconviction relief petition.
{¶2} Haschenburger was arrested for raping an underage teenage girl multiple times from 2000-2003. The Mahoning County Grand Jury indicted Haschenburger on ten counts of rape in violation of
{¶3} This court affirmed nine of the rape convictions, but vacated the tenth for lack of sufficient evidence. See State v. Haschenburger, 7th Dist. No. 05 MA 192, 2007-Ohio-1562, appeal not accepted for review by 115 Ohio St.3d 1409, 2007-Ohio-4884, 873 N.E.2d 1315. This court also vacated the sentences for the remaining nine convictions, and remanded for resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 270. Id.
{¶4} On November 2, 2007, the trial court resentenced Haschenburger to 90 years, the maximum consecutive sentences on the remaining nine counts.
{¶5} Haschenburger appealed his resentencing decision to this court and on December 20, 2008, the sentence was affirmed. See State v. Haschenburger, 7th Dist. No. 07-MA-207, 2008-Ohio-6970.
{¶6} On September 10, 2008, Haschenburger filed a petition for postconviction relief. On October 2, 2008, plaintiff-appellee, State of Ohio, filed a motion for judgment on the pleadings, a motion to dismiss, and an answer. On October 6, 2008, the trial court filed a judgment entry sustaining the state‘s motion. From that denial of the petition for postconviction relief, Haschenburger timely appeals.
{¶7} Haschenburger‘s first assignment of error states:
{¶8} “The trial court erred in dismissing appellant‘s petition as untimely because the petition was filed within 180 days of the transmission of the record during a direct appeal.”
{¶10} At issue here is the timeliness of Haschenburger‘s petition. Concerning timeliness and subject to certain exceptions set forth in
{¶11} If a postconviction relief petition is filed beyond the 180-day time limitation or the petition is a second or successive petition for postconviction relief,
{¶12} Unless the defendant makes the showings required by
{¶13} In this case, Haschenburger did not file his petition for postconviction relief until after his second appeal following his November 2, 2008 resentencing hearing. Haschenburger failed to allege any of the specifically enumerated
{¶14} Thus, the central issue of this case is whether a subsequent appeal following a vacated sentence is a “direct appeal” for purposes of the timeliness requirement set forth in
{¶15} This court, as well as the Fifth, Eighth, and Tenth Appellate Districts, have confronted the issue concerning time extensions for filing a petition for postconviction relief after a delayed appeal. In State v. Price (Sept. 29, 1998), 10th Dist. No. 98-AP-80, the Tenth District first addressed the issue by stating that extending the time for filing a postconviction relief petition based upon a delayed appeal would nullify the obvious intent of the General Assembly to place time limits on these petitions. The court also noted that it was unreasonable to give a defendant, who neglects to timely file a direct appeal, more time for filing his postconviction relief petition than a defendant who timely files his direct appeal. Id. See, also, State v. Bird (2000), 138 Ohio App.3d 400, 741 N.E.2d 560, 561-562 (reaffirming that a delayed appeal is different from the “direct appeal” contemplated in the postconviction relief statute and thus does not extend the time for filing a postconviction relief petition).
{¶16} The Fifth District agreed that the time for filing a petition for postconviction relief does not begin to run from the time the trial transcript is filed in the delayed appeal; but, rather, it begins to run when the time for filing a timely direct appeal expires. State v. Johnson (Apr. 21, 1999), 5th Dist. No. CT-98-29. See, also, State v. Godfrey (Feb. 28, 2000), 5th Dist. No. 99-CA-95 (where the Fifth District used the reasoning in Price to conclude that a reopened appeal does not extend the time limit for filing for postconviction relief).
{¶18} Similarly, courts have applied this same sentiment for strict adherence to the 180-day time limit to cases involving more than one appeal or reopened appeals. In State v. Laws, 10th Dist. No. 04AP-283, 2004-Ohio-6446, the court faced a defendant‘s petition for postconviction relief filed after he was resentenced pursuant to a remand in his first appeal. In Laws, the court concluded that “the time limits of
{¶19} Similarly, in State v. Casalicchio, a more recent case in which the defendant was resentenced pursuant to Foster, the court held the defendant‘s petition for postconviction relief to be untimely. State v. Casalicchio, 8th Dist. No. 89555, 2008-Ohio-2362. In Casalicchio, the defendant appealed his conviction and sentence. The court held that the time limitation period for postconviction relief began to run when the transcript was filed. Id. The court went on to state that when the trial court imposed the defendant‘s “second” sentence at the resentencing
{¶20} In support of his position, Haschenburger cites State v. Roberts, 11th Dist. No. 2005-T-0034, 2007-Ohio-5616. Roberts was convicted of two counts of aggravated murder, one count of aggravated burglary, and one count of aggravated robbery. She was sentenced to death for the aggravated murder and two separate ten-year sentences for the remaining two offenses. She immediately appealed to the Ohio Supreme Court. While that appeal was pending, she filed original and amended petitions for postconviction relief which were dismissed by the trial court. She appealed the dismissal of her petitions to the Eleventh District Court of Appeals. During the pendency of the postconviction appeal in the Eleventh District, the Ohio Supreme Court rendered its decision upholding her convictions but vacating the death sentence and remanding to the trial court for further proceedings.
{¶21} In considering the postconviction appeal, the Eleventh District determined that the Ohio Supreme Court‘s decision vacating Robert‘s death sentence “had the effect of nullifying all of the proceedings in regard to her original and amended postconviction petitions” including the trial court‘s dismissal of those petitions. Id. at ¶7. Thus, the court concluded that the appeal was no longer properly before it because the appealed judgment was not a final appealable order. Id.
{¶22} Haschenburger‘s reliance on Roberts is misplaced. Roberts had nothing to do with whether the defendant‘s petition for postconviction relief had been timely filed under
{¶24} Subsequently, in Payne, the Court explained the difference between a sentence that is “void” from one that is “voidable.” State v. Payne, 114 Ohio St.3d. 502, 2007-Ohio-4642, 873 N.E.2d 306. The Payne court held, “[a] void sentence is one that a court imposes despite lacking subject-matter jurisdiction or the authority to act. * * * Conversely, a voidable sentence is one that a court has jurisdiction to impose, but was imposed irregularly or erroneously.” Id. at ¶27. In fact, as it relates to sentences affected by the Foster decision, the Court specifically held that pre-Foster sentences imposed after judicial fact-finding and falling within the statutory range were merely voidable. Id. at ¶29.
{¶25} As the Eighth District observed in State v. Casalicchio, 8th Dist. No. 89555, 2008-Ohio-2362, Payne implicitly overruled Bezak. The court reasoned that Payne indicated the Supreme Court‘s retreat from Bezak when it had labeled a sentence “void,” since the trial court had the authority to impose the sentence, but improperly exercised that authority. Id. In Casalicchio, the court thus held that a sentence that does not properly include postrelease control is “voidable,” not “void.” Id. Therefore, the court concluded that since the defendant‘s sentence was not “void” or a “nullity”, it did not restart the clock to file a petition for postconviction relief Id. at ¶18.
{¶27} In sum, we conclude that reversal of a sentence pursuant to Foster does not “void” or “nullify” the original “judgment of conviction or adjudication” and, therefore, does not extend the time for filing a petition for postconviction relief which raises issues concerning the defendant‘s conviction. We find the Tenth District‘s reasoning in Law persuasive. If we were to determine that the time for filing a defendant‘s petition for postconviction relief did not begin to run until the last of the direct appeals from the trial court‘s sentence[s], the time for filing postconvictions petitions would be extended well beyond the time limits set forth in
{¶28} Logic also dictates this result and that is not to say that any postconviction petition following a Foster resentencing would be untimely. After a defendant is convicted and sentenced and files a timely notice of appeal, “the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication.”
{¶29} Accordingly, Haschenburger‘s first assignment of error is without merit.
{¶30} Haschenburger‘s second assignment of error states:
{¶31} “The trial court erred and denied Appellant due process when it ruled on the State‘s motion to dismiss and/or motion for judgment on the pleadings without affording Appellant an opportunity to reply.”
{¶32} Haschenburger argues the court denied him of his right to due process because the trial court granted the state‘s motion to dismiss on the pleadings without affording him adequate time to respond. While it is true that the trial court ruled on the state‘s motion after only four days, the timing of the trial court‘s decision did not prejudicially affect Haschenburger‘s due process rights. A postconviction petition is a special civil action governed exclusively by statute, thus a petitioner receives no more rights than those granted by the statute. State v. Calhoun (1999), 86 Ohio St.3d 279, 281, 714 N.E.2d 905.
{¶33} Haschenburger argues that
{¶34} Accordingly, Haschenburger‘s second assignment of error is without merit.
{¶35} Haschenburger‘s third assignment of error states:
{¶36} “The trial court erred in its substantive reasons for the [sic] denying the petition, thus denying Appellant meaningful access to the Courts of this State.”
{¶37} Haschenburger argues that the trial court improperly denied the petition without a hearing, finding that the petition failed to state substantive grounds for relief, when both claims in the petition did indeed state a constitutional violation. Under Haschenburger‘s first assignment of error, we found that his petition was untimely. Since the petition was untimely, the trial court was without jurisdiction to address the merits of the petition. Consequently, this assignment of error directed at the substantive merits of Haschenburger‘s petition is rendered moot and we need not address it. App.R. 12(A)(1)(c). However, even assuming his petition was timely, this assignment of error would still fail on its merits.
{¶38} As indicated,
{¶39} “Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the
{¶40} In State v. Calhoun (1999), 86 Ohio St.3d 279, 282-83, 714 N.E.2d 905, the Ohio Supreme Court held:
{¶41} “According to the postconviction relief statute, a criminal defendant seeking to challenge his conviction through a petition for postconviction relief is not automatically entitled to a hearing. State v. Cole (1982), 2 Ohio St.3d 112, 2 OBR 661, 443 N.E.2d 169. Before granting an evidentiary hearing on the petition, the trial court shall determine whether there are substantive grounds for relief (
{¶42} The Court also went on to hold that it is not unreasonable to require the defendant to show in his petition for postconviction relief that the alleged errors resulted in prejudice before a hearing is scheduled. Id. at 283, 714 N.E.2d 905. Therefore, before a hearing is granted, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the merit of his claims.
{¶43} Thus, the trial court must determine if a hearing is warranted based upon the petition, supporting affidavits, and all of the files and records pertaining to the proceedings. State v. Pierce (1998), 127 Ohio App.3d 578, 586, 713 N.E.2d 498; State v. Smith (Dec. 11, 1997), 7th Dist. No. 96-JE-44. A trial court‘s decision regarding whether or not to conduct an evidentiary hearing in postconviction matters is governed by the “abuse of discretion” standard. Smith, 7th Dist. No. 96-JE-44. An abuse of discretion connotes conduct which is unreasonable, arbitrary, or
{¶44} Evidence attached to a petition for postconviction relief must meet “some threshold standard of cogency.” State v. Lawson (1995), 103 Ohio App.3d 307, 315, 659 N.E.2d 362. That threshold is not met by evidence which is “only marginally significant and does not advance the petitioner‘s claim beyond mere hypothesis and a desire for further discovery.” Id. Additionally, “where a petitioner relies upon affidavit testimony as the basis of entitlement to postconviction relief, and the information in the affidavit, even if true, does not rise to the level of demonstrating a constitutional violation, then the actual truth or falsity of the affidavit is inconsequential.” State v. Calhoun (1999), 86 Ohio St.3d 279, 284, 714 N.E.2d 905.
{¶45} Even when affidavits are filed in support of the petition, although a trial court “should give [them] due deference,” it may also “judge their credibility in determining whether to accept the affidavits as true statements of fact.” Id. at 284, 714 N.E.2d 905. In assessing the credibility of affidavit testimony, the consideration should be given to “all relevant factors.” Id. Among those factors are (1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner‘s efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial. Moreover, a trial court may find sworn testimony in an affidavit to be contradicted by evidence in the record by the same witnesses, or to be internally inconsistent, thereby weakening the credibility of that testimony. Id. Depending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility. Id. at 285, 714 N.E.2d 905.
{¶46} When applying the above to the present case, it is evident that out of the three affidavits submitted in support of Haschenburger‘s postconviction petition,
{¶47} Beyond the affidavits, Haschenburger failed to meet his burden of asserting facts which would entitle him to relief. In his first claim, Haschenburger argued that the trial court took away his rights to testify on his own behalf. On occasions when a defendant has acquiesced in their counsel‘s decision not to place them on the stand, it has been held that they cannot later assert that their right to testify has been violated. State v. McCaleb, 11th Dist. No. 2002-L-157, 2004-Ohio-5940, ¶94; State v. Ashley (June 14, 2000), 4th Dist. No. 99 CA 2514; State v. Jones (Sept. 30, 1993), 8th Dist. No. 63836. Furthermore, the court requires that the petitioner take some overt action to bring to the court‘s attention his desire to testify. Ashley, supra. Here, Haschenburger‘s petition contains no indication of an overt action to bring to the court‘s attention his desire to testify.
{¶48} Haschenburger‘s second claim involves an alleged disclosure of confidential documents. Other than references to “documents which were harmful to
{¶49} Consequently, the court did not err when it used its discretion in determining that Haschenburger produced no sufficient credible evidence to demonstrate that he suffered a violation of his constitutional rights.
{¶50} Accordingly, Haschenburger‘s third assignment of error is without merit.
{¶51} The judgment of the trial court is hereby affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs.