State v. Hatton, 06ca35 (7-19-2007)State v. Hatton, 06ca35 (7-19-2007)
{¶ 3} Hatton filed five petitions for post-conviction relief in the trial court over the years, counting this currеnt one. Each time he appealed the trial court's decision. One involved DNA, see State v.Hatton, Pickaway App. No. 05CA38,
{¶ 4} On June 28, 2006, Hatton filed this current motion to vacate his allegedly void sentence under
{¶ 5} Hatton timely appeals and asserts two assignments of error: I. "A Court may not arbitrarily Convert a Direct Attack into a collateral attack where the direct attack is properly filеd under the proper case number pursuant to a specific rule of court." And, II. "Appellant's sentence is unconstitutional under the Ohio and United States Constitution pursuant to Apprendi v. New Jersey."
{¶ 7} Pursuant to
{¶ 8} Thus, before a trial court may consider an untimely petition for post-conviction relief, the petitioner must prove: (1) that he was unavoidably prevented from discovering the facts upon which he bases his petition, or that thе petitioner's claim is based upon a newly-created federal or state right, which is retroactive to his situation; and (2) that clear and convincing evidence demonstrates that no reasonable factfinder would have found him guilty in the absence of the alleged constitutional error. State v. Howell (June 26, 2000), Meigs App. No. 99CA677.
{¶ 9} This Court's standard of review is de novo when reviewing a trial court's dismissal or denial of a petition for post-conviction relief without a hearing. See, e.g., State v. Anderson, Washington App. No. 06CA32,
{¶ 10} Hatton contends that, under the new federal right enunciated inApprendi, Blakely, and Booker, the Foster court found parts of Ohio's sentencing statutes unconstitutional because the trial court, instead of a jury, had to make certain findings to enhance a sentence. However, as we stated earlier, Hatton acknowledges that we cannot apply theFoster decision retroactivеly to his situation. Instead, Hatton asserts that we must apply the remedy provided in Griffin, supra, to his situation.
{¶ 11} In Griffin, decided before Foster, the Ohio Supreme Court issued a writ of prohibition to prevent a trial judge from holding a jury-sentencing hearing in an underlying criminal case. The trial judge wanted to hold this hearing because of the Blakely decision. TheGriffin court stated that the judge did not have jurisdiction to hold a jury-sentencing hearing because neither the Ohio Constitution nor the sentencing statutes allow such a hearing.
{¶ 12} We can easily distinguish the facts in Griffin from the facts here. A writ of prohibition is "[a]n extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction[.]" Black's Law Dictionary (8th Ed.2004) 1248. A writ of prohibition does not apply in this case because it is issued before the act occurs, not afterwards. The trial judge in Griffin had not yet acted while the trial court here has already acted, i.e., it has already sentenced *6 Hatton using statutes that the Foster court later found unconstitutional. Therefore, Griffin is inapplicable to the facts in this case.
{¶ 13} Here, we find that Hatton failed to show that his petition was timely. His direct appeal ended in 1999 when the Ohio Supreme Court rejеcted his appeal. Apprendi created a new federal right in 2000.Foster, because of this federal right, found parts of Ohio's sentencing statutes unconstitutional. However, as Hatton admits, he cannot take advantage of the Foster decision because it only applies retroactively to cases that are on direct appeal. As such, Hatton's situation does not comport with the first prong of the two-pronged test set forth in
{¶ 14} Thеrefore, for the above stated reasons, we find that the trial court lacked jurisdiction to entertain the petition and properly dismissed it. See State v. Wilson, Lawrence App. No. 05CA22,
{¶ 15} Accordingly, we overrule Hatton's second assignment of error.
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{¶ 19} For purposes of this opinion, we will assume, without deciding, that the trial court erred, i.e., it should have ruled on Hatton's
{¶ 20} The Ohio Supreme Court has held that for a party to prevail under Rule 60(B) the "movant must demonstrate that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in
{¶ 21} A party who files a motion for relief from judgment under
{¶ 22} Here, Hatton did nоt allege operative facts that, if true, would be sufficient to establish the third element of the GTE test. Hatton has not established that he filed his motion within a reasonable time. The Ohio Supreme Court has stated numerous times, "A
{¶ 23} Therefore, Hatton did not allege that he filed his motion within а reasonable time as required by the third element of theGTE test. He was not even entitled to an evidentiary hearing. Consequently, the trial court's error was not prejudicial.
{¶ 24} Accordingly, we overrule Hatton's first assignment of error. Having overruled both of Hatton's assignments of error, we affirm the judgment of the trial court.
*10JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a speсial mandate issue out of this Court directing the Pickaway County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
*1McFarland, P.J. and Abele, J.: Concur in Judgment and Opinion.