2006 Ohio 6654 | Ohio Ct. App. | 2006
OPINION
{¶ 1} This is an appeal by defendant-appellant, John J. Jones, from a judgment of the Franklin County Court of Common Pleas, denying appellant's petitions to vacate his sentences in two separate cases.
{¶ 2} On January 11, 2002, appellant was indicted on one count of aggravated robbery and two counts of robbery in common pleas case No. 02CR-0144; each count carried both one-year and three-year firearm specifications. On March 13, 2002, appellant was indicted on one count of aggravated murder and one count of aggravated robbery in common pleas case No. 02CR-1343; both counts included a three-year firearm specification.
{¶ 3} On March 12, 2003, as part of a joint sentencing recommendation, appellant entered a guilty plea to one count of aggravated robbery (without specification) in case No. 02CR-0144. Also on that date, in case No. 02CR-1343, appellant entered guilty pleas to voluntary manslaughter (under the aggravated murder count), with a three-year firearm specification, and aggravated robbery, with a three-year firearm specification.
{¶ 4} By judgment entries filed March 17, 2003, the trial court sentenced appellant according to the jointly recommended sentences.1 Specifically, appellant was sentenced to seven years incarceration on the aggravated robbery count in case No. 02CR-0144; further, in case No. 02CR-1343, he was sentenced to ten years incarceration on Count 1 (plus three years for the specification) and seven years incarceration as to Count 2 (plus three years for the specification), with the court merging the three-year firearm specifications. The court ordered that the sentences in case No. 02CR-1343 be served concurrent to the sentence in case No. 02CR-0144 (for a total sentence of 20 years).
{¶ 5} On February 13, 2006, appellant filed identical petitions for post-conviction relief in case Nos. 02CR-0144 and 02CR-1343, citing the United States Supreme Court's decision in Blakely v. Washington (2004),
{¶ 6} On appeal, appellant sets forth the following three assignments of error for review:
ASSIGNMENT OF ERROR 1.
THE TRIAL COURT ERRED IN VIOLATION OF APPELLANT'S ABSOLUTE RIGHT TO PROCEDURAL DUE PROCESS OF LAW IN DETERMINING THAT THE PETITION FOR POSTCONVICTION RELIEF COULD BE ENTERTAINED UNDER R.C. SECTIONS
2953.21 2953.23 (A)(1)(a)(b).ASSIGNMENT OF ERROR 2.
APPELLANT'S SENTENCE IS VOID UNDER THE AUTHORITY OF State v. Foster, (2006),
109 Ohio St. 3d 1 ,845 N.E. 2d 740 ; Apprendi v. N.J., (2000),120 S.Ct. 2338 and Blakely v. Washington, (2004),124 S.Ct. 2531 WHERE THE TRIAL COURT MADE JUDICIAL FACTFINDING THAT DEPRIVED APPELLANT OF HIS RIGHT UNDER O.R.C.2929.14 (B) TO RECEIVE THE MINIMUM SENTENCE OF SIX (6) YEARS.ASSIGNMENT OF ERROR 3. THE INEFFECTIVE ASSISTANCE OF COUNSEL IS MANIFEST WHERE COUNSEL FAILED [TO] RECOGNIZE, ARGUE OR BRIEF THE APPRENDI-BLAKELY VIOLATION.
{¶ 7} We will address appellant's assignments of error jointly. Under his first and second assignments of error, appellant contends that the trial court erred in failing to entertain the petitions, pursuant to R.C.
{¶ 8} It is well-settled that "[t]he post-conviction relief process is a collateral civil attack on a criminal judgment, not an appeal of the judgment." State v. Campbell, Franklin App. No. 03AP-147,
{¶ 9} In the instant case, appellant's petitions were filed more than 180 days after the expiration of the time for filing an appeal. Pursuant to R.C.
(a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner's situation, and the petition asserts a claim based on that right.(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder 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 reasonable factfinder would have found the petitioner eligible for the death sentence.
{¶ 10} As noted, appellant contends he is entitled to relief under the provisions of R.C.
{¶ 11} Additionally, this court has also held that "Blakely does not apply to a jointly recommended sentence." Graham, supra, at ¶ 11. In the instant case, as noted by the state, appellant's 20-year aggregate sentence was the result of a joint sentencing recommendation. Thus, " 'given the joint sentencing recommendation, no findings were statutorily required to impose the * * * sentence. * * * As there is no statutory requirement that findings be made, Apprendi * * * and Blakely are inapplicable[.]' " Id., quoting State v. Brown, Franklin App. No. 05AP-375,
{¶ 12} Accordingly, the trial court did not err in finding appellant's petitions to be untimely, and that none of the statutory exceptions were applicable.
{¶ 13} Appellant's third assignment of error, in which he contends his counsel was ineffective in failing to argue Blakely before the trial court, is also without merit. In order to prevail on a claim of ineffective assistance of counsel, an accused must show that: "(1) trial counsel's performance was so deficient that the attorney was not functioning as the counsel guaranteed by the
{¶ 14} Here, because Blakely did not apply to appellant's sentence, counsel's "failure to raise the decision during sentencing could not have constituted ineffective assistance of counsel." Winbush, supra, at ¶ 8. We further note that Blakely was decided more than one year after appellant was sentenced, and courts have recognized, in similar instances, that "[a]n attorney's failure to predict Blakely does not constitute the ineffective assistance of counsel." Banks v. Wolfe
(S.D.Ohio May 30, 2006), No. 2:05-CV-00697, unreported. See, also,Marshall, supra, at ¶ 18 (finding no ineffective assistance of counsel as "counsel could not possibly have anticipated the result inBlakely more than a year before it was released"); State v. Savage, Lake App. No. 2005-L-119,
{¶ 15} Based upon the foregoing, appellant's three assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT, P.J., and PETREE, J., concur.
