State v. IsaState v. Isa
HALL, J.,
{¶ 1} Abraham Isa appeals pro se from the trial court‘s denial of his September 13, 2012 “Motion to Vacate Sentence [as] Contrary to Law.”
{¶ 3} Notwithstanding the caption and first page of Isa‘s September 13, 2012 motion, his legal argument challenges neither his sentence nor sought to withdraw any guilty pleas. We glean from Isa‘s motion that it actually asserts ineffective assistance of trial counsel for allegedly advising him to reject a favorable plea bargain and neglecting to tell him, a foreign national, about potential deportation issues. (Doc. #129). The State opposed the motion, characterizing it as an untimely petition for post-conviction relief. (Doc. #131). Isa filed a reply that includes his wife‘s affidavit. (Doc. #133). She avers that she overheard Isa‘s trial counsel advise him to reject an offered plea bargain providing for an aggregate three-year prison sentence.1 (Id.).
{¶ 5} In his sole assignment of error, Isa contends the trial court “erred in overruling [his] motion for new trial due to ineffective assistance of counsel.” As he did below, he argues that trial counsel provided ineffective assistance by advising him to reject a plea bargain and assuring him that he would be acquitted at trial. Isa also makes reference to counsel‘s obligation to advise a non-citizen defendant of deportation issues as part of the plea-bargain process. Finally, he argues that res judicata does not apply because he presented evidence outside the trial record, namely his wife‘s affidavit. (Appellant‘s brief at 4).
{¶ 6} Upon review, we find no error in the trial court‘s denial of relief. Isa‘s assertion, accompanied by an affidavit outside the record, that trial counsel provided ineffective assistance by advising him to reject a favorable plea bargain is a textbook example of a
{¶ 7} The Revised Code establishes a time limit for seeking post-conviction relief. In relevant part,
{¶ 8} Here Isa was not unavoidably prevented from discovering his attorney‘s alleged
{¶ 9} Nor are we persuaded that the United States Supreme Court has recognized a new right that applies retroactively to Isa‘s situation. On appeal, Isa relies heavily on Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), arguing that these twin cases established a “newly created constitutional field of plea-bargaining law.” (Appellant‘s brief at 3). Unfortunately for Isa, neither case establishes a new right or announces a new rule of constitutional law. They simply examined a defendant‘s existing right to the effective assistance of counsel in the context of plea bargaining. Hicks, 2013-Ohio-1904, at ¶13-14; State v. Bains, 8th Dist. Cuyahoga No. 98845, 2013-Ohio-2530, ¶20; see also United States v. Garcia-Rodriguez, 10th Cir. No. 13-8031, 2013 WL 3032772 (June 19, 2013) (“Although Mr. Garcia-Rodriguez seeks to rely on Lafler and [Frye] to establish that his claims are not successive, we recently joined six other circuits in holding that these decisions do not establish a new rule of constitutional law.“); United States v. Echerivel, 500 Fed. Appx. 568 (8th Cir.2013) (“[N]either of the recent Supreme Court cases cited by Ms. Echerivel announced a new rule of constitutional law.“); Gallagher v. United States, 711 F.3d 315 (2d Cir.2013) (“Neither Lafler nor Frye announced ‘a new rule of constitutional law‘: Both are applications of Strickland v. Washington[.]“).
{¶ 10} Based on the foregoing authority, we conclude that Isa‘s motion, which actually was a post-conviction relief petition, was untimely. A trial court lacks jurisdiction to consider an untimely petition for post-conviction relief where, as here, the untimeliness is not excused by
{¶ 11} Isa‘s assignment of error is overruled, and the judgment of the Champaign County Common Pleas Court is affirmed.
DONOVAN and FROELICH, JJ., concur.