State v. HollandState v. Holland
For Plaintiff-Appellee:
KENNETH W. OSWALT
Prosecuting Attorney
20 South Second Street, 4th Fl.
Newark, Ohio 43055
For Defendant-Appellant:
STEVEN HOLLAND
Pro Se
North Central Corr. Inst.
P.O. Box 1812
Marion, Ohio 43301
{¶1} Appellant Steven Holland, pro se, appeals the decision of the Licking County Common Pleas Court denying his motion to amend sentence. Appellee is the State of Ohio.1
{¶2} On or about March 31, 1988, Appellant was charged by indictment with one count of aggravated burglary in violation of
{¶3} On May 4, 1988, Appellant entered pleas of guilty to the charges of aggravated burglary, vandalism and public indecency. The charge of theft was dismissed by the Stаte. Appellant, who was represented by counsel, signed a change of plea form.
{¶4} By judgment entry filed May 16, 1988, the trial court sentenced Appellant to twelve to twenty-five years in prison for aggravated burglary; two to five years in prison for vandalism, the sentences to run consecutive; and to thirty days in jail for public indecency, to run concurrently to the felony sentences.
{¶5} Appellant did not appeal his conviction or sentence.
{¶7} The trial court summarily overruled Appellant‘s motion by judgment entry filed September 24, 2009.
{¶8} Appellant filed a timely appeal, but failed to raise any Assignments of Error in the brief. However, in the interest of justiсe, this Court affirms the trial court’s decision for the following reasons.
{¶9} Appellant argues that the offenses of aggravated burglary and vandalism are аllied offenses of similar import and consecutive sentences are precluded, therefore his sentence is void.
{¶10} The trial court’s May 16, 1988, sentеncing entry contains the following: “[I]t is the sentence and judgment of the Court that Defendant is sentenced to the Orient Correctional Facility on the 1st Count оf Aggravated Burglary with specification for an indeterminate sentence of not less than twelve (12) years nor more than twenty-five (25) years; 12 years of whiсh is actual incarceration; as to the 3rd Count, the defendant is hereby sentenced to the Orient Correctional Facility for an indeterminate sеntence of not less than two (2) nor more than five (5) years and this count shall run consecutive
{¶11} Post-conviction efforts to vacate a criminal conviction or sentence on constitutional grounds are governed by
{¶12} “Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘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, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.”
{¶13} The caption of a pro sе pleading does not definitively define the nature of the pleading. State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304. In Reynolds, the Ohio Supreme Court found, despite its caption, the appellant‘s plеading met “the definition of a motion for post-conviction relief set forth in
{¶14} Pursuant to
{¶15} The record indicates Appellant did not file a direct appeal in this matter with a transcript. Thеrefore, under
{¶16} Appellant was convicted on May 16, 1988. However, Appellant did not file his petition for post-conviction relief until September 23, 2009, which is wеll beyond the time period provided for in the statute. Because Appellant‘s petition was untimely filed, the trial court was required to entertain Aрpellant‘s petition only if he could meet the requirements of
{¶17} * * * [A] court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitionеr unless both of the following apply:
{¶18} “(1) Either of the following applies:
{¶19} “(a) The petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upоn which the petitioner must rely to present the claim for relief.
{¶20} “(b) Subsequent to the period prescribed in division (A)(2) of section
{¶21} “(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder 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 constitutional error at the sentencing hearing, no rеasonable fact finder would have found the petitioner eligible for the death sentence.”
{¶22} In his petition, Appellant did not provide a basis undеr
{¶23} As such, Appellant has failed to meet his burden under
{¶24} We find that the trial court‘s denial is proper because the court was not statutorily authorized to entertain the petition because of its untimeliness. Id.
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concurs
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
PAD:kgb
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN