State v. Holland
2012 Ohio 1404
Ohio Ct. App.
2012
Check Treatment

STATE OF OHIO v. BRIAN E. HOLLAND

Case No. 2011-CAO-122

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

March 28, 2012

[Cite as State v. Holland, 2012-Ohio-1404.]

Hon. W. Scott Gwin, P.J.; Hon. William B. Hoffman, J.; Hon. John W. Wise, J.

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 10CR628; JUDGMENT: Reversed and Remanded

APPEARANCES:

For Plaintiff-Appellee

KENNETH OSWALT Licking County Prosecutor BY: JUSTIN T. RADIC 20 South Second St., 4th Floor Newark, OH 43055

For Defendant-Appellant

BRIAN E. HOLLAND PRO SE #647-963 BECI P.O. Box 540 St. Clairsville, OH 43950

Gwin, P.J.

{1} Defendant-appellant Brian E. Holland appeals a judgment of the Court of Common Pleas of Licking County, Ohio, which found his petition to vacate or set aside judgment of conviction or sentence is untimely and a duplication of his direct appeal. Appellant assigns two errors to the trial court:

{2} “I. TRIAL COURT ERRORED [SIC] WHEN IT DISMISSED PETITION FOR POST CONVICTION RELIEF O.R.C. 2953.21.

{3} “II. TRIAL COURT ERRORED [SIC] WHEN IT RULED THAT PETITIONER‘S DIRECT APPEAL AND POST CONVICTION PETITION ARE A DUPLICATION OF EACH OTHER.”

{4} The State concedes appellant‘s petition for post-conviction relief was filed within the time required by R.C. 2953.21 (A)(2).

{5} Appellant argues the trial court erred in not granting him an evidentiary hearing on the merits of his motion. An evidentiary hearing is not automatically required for every petition seeking post-conviction relief. . While a trial court does not have jurisdiction to review an untimely petition unless it meets with certain exceptions, if it is timely, the court must determine if the petition sets forth sufficient operative facts to establish substantive grounds for relief. R.C. 2953.21(G). The statute requires a court to make findings of fact and conclusions of law if it finds there are no grounds for granting relief.

{6} The trial court found the petition was untimely, and did not make findings of fact and conclusions of law. Because we find the petition was filed in a timely manner, we reverse and remand with instructions for the court to review merits of the petition and determine if a hearing is necessary. If the court determines no hearing is necessary it should make the appropriate findings of fact and conclusions of law.

{7} The first assignment of error is sustained. The second assignment of error is premature.

{8} For the foregoing reasons, the judgment of the Court of Common Pleas of Licking County, Ohio, is reversed, and the cause is remanded to the court for further proceedings in accord with law and consistent with this opinion.

By Gwin, P.J., and

Wise, J., concur

Hoffman, J., dissents

HON. W. SCOTT GWIN

HON. WILLIAM B. HOFFMAN

HON. JOHN W. WISE

WSG:clw 0321

Hoffman, J., dissenting

{¶9} I respectfully dissent from the majority opinion.

{¶10} The trial court found Appellant‘s petition was a duplication of his direct appeal. Although sparse, such finding nevertheless can support its “undesignated” legal conclusion Appellant‘s petition is barred by res judicata.

HON. WILLIAM B. HOFFMAN

STATE OF OHIO v. BRIAN E. HOLLAND

CASE NO. 2011-CAO-122

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

[Cite as State v. Holland, 2012-Ohio-1404.]

JUDGMENT ENTRY

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio, is reversed, and the cause is remanded to the court for further proceedings in accord with law and consistent with this opinion. Costs to appellee.

HON. W. SCOTT GWIN

HON. WILLIAM B. HOFFMAN

HON. JOHN W. WISE