STATE OF OHIO, PLAINTIFF-APPELLEE, v. ROBERT J. LEE, DEFENDANT-APPELLANT.
CASE NO. 3-18-14
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT CRAWFORD COUNTY
September 17, 2018
[Cite as State v. Lee, 2018-Ohio-3715.]
Appeal from Crawford County Common Pleas Court, Trial Court No. 09 CR 169, Judgment Affirmed
Robert J. Lee, Appellant
Matthew E. Crall for Appellee
{¶1} Defendant-appellant, Robert J. Lee (“Lee”), pro se, appeals the May 17, 2018 judgment entry of the Crawford County Court of Common Pleas denying his petition for post-conviction relief. For the reasons that follow, we affirm.
{¶2} In January 2010, Lee was convicted of five counts: Count One of aggravated burglary in violation of
{¶3} On April 27, 2010, Lee appealed the trial court‘s judgment entry of sentence. (Doc. No. 27). See Lee at ¶ 14-15. In that direct appeal, we affirmed the judgment of the trial court. Id. at ¶ 35. Lee then appealed this court‘s decision to
{¶4} On April 30, 2018, Lee filed a petition for post-conviction relief arguing that, in light of the Supreme Court of Ohio‘s decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the trial court erred by determining that Counts One, Two, and Three did not merge for purposes of sentencing. (Doc. No. 35). On May 17, 2018, the trial court denied Lee‘s petition. (Doc. No. 37).
{¶5} On June 18, 2018, Lee filed a notice of appeal. (Doc. No. 38). He raises one assignment of error.
Assignment of Error
The Courts erred in failing to hold that offenses of Aggravated Robbery O.R.C. 2911.01(A)(3), Aggravated Burglary O.R.C. 2911.11(A)(1) & Felonious Assault O.R.C. 2903.11(A)(1) were allied offenses of similar import O.R.C. 2941.25(A).
{¶6} Although Lee does not explicitly argue in his appellate brief that the trial court committed any reversible error by denying his petition for post-conviction relief, his arguments in support of his assignment of error are nearly identical to those he made in his petition for post-conviction relief. Therefore, we will treat
{¶7} “
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 * * * 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. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief.
{¶8}
Except as otherwise provided in [
R.C. 2953.23 ], a petition under [R.C. 2953.21(A)(1) ] shall be filed no later than three hundred sixty-fivedays after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication * * *.
A trial court lacks jurisdiction to entertain an untimely petition for post-conviction relief unless the defendant demonstrates that one of the
{¶9} “‘“[A] trial court‘s decision granting or denying a postconviction petition filed pursuant to
{¶10} The trial court did not abuse its discretion by denying Lee‘s petition for post-conviction relief. Lee‘s petition for post-conviction relief is untimely. The trial transcripts in Lee‘s direct appeal were filed in this court on June 2, 2010. (See Doc. No. 30). His petition for post-conviction relief was filed in the trial court on April 30, 2018. (See Doc. No. 35). Thus, because Lee filed his petition for post-conviction relief in 2018—many years after the expiration of the deadline to file a timely petition—his petition for post-conviction relief is untimely.
{¶11} “Once a court has determined that a petition is untimely, no further inquiry into the merits of the case is necessary.” State v. Morgan, 3d Dist. Shelby No. 17-04-11, 2005-Ohio-427, ¶ 6, citing State v. Beaver, 131 Ohio App.3d 458 (11th Dist.1998). Trial courts should dismiss untimely post-conviction motions for lack of jurisdiction; nevertheless, a trial court does not commit reversible error by denying an untimely post-conviction petition. State v. Hatfield, 10th Dist. Franklin No. 07AP-784, 2008-Ohio-1377, ¶ 8, citing State v. Hamilton, 10th Dist. Franklin No. 03AP-852, 2004-Ohio-2573, ¶ 9 and State v. Hensley, 9th Dist. Lorain No. 03CA008293, 2003-Ohio-6457, ¶ 7.
{¶13} Because Lee‘s petition is untimely and the trial court lacked jurisdiction to consider the petition, the trial court should have dismissed Lee‘s petition; however, the trial court did not abuse its discretion by denying, rather than dismissing, Lee‘s petition. See State v. Carter, 3d Dist. Allen No. 1-17-09, 2017-Ohio-4354, ¶ 12, citing Hatfield at ¶ 8, citing Hamilton at ¶ 9 and Hensley at ¶ 7.
{¶14} Lee‘s assignment of error is overruled.
{¶15} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
/jlr