State v. LutherState v. Luther
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Richard J. Luther, Jr., appeals the decision of the Lorain County Court of Common Pleas, which denied his motion for post-conviction relief. This Court affirms.
I.
{¶ 2} On April 28, 1998, appellant was indicted by the Lorain County Grand Jury on one count of engaging in a pattern of corrupt activity, in violation of
{¶ 3} On June 27, 2005, appellant filed a motion to vacate and reconstruct his sentence. The trial court denied appellant‘s motion on July 7, 2005. Appellant timely appealed the denial of his motion for post-conviction relief, setting forth four assignments of error for review. The assignments of error have been rearranged to facilitate review.
II.
FIRST ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN SUA SPONTE DENYING [APPELLANT‘S] MOTION TO VACATE AND RECONSTRUCT SENTENCE WITHOUT FIRST ALLOWING THE PROSECUTING ATTORNEY TO RESPOND TO IT.”
{¶ 4} In his first assignment of error, appellant contends that the trial court erred in denying his motion to vacate and reconstruct sentence without allowing the State to respond. Appellant‘s assignment of error lacks merit.
{¶ 5}
{¶ 6} Although this provision provides that the State “shall respond“, the State‘s duty to respond is discretionary, not mandatory. State v. Sklenar (1991), 71 Ohio App.3d 444, 446; State v. Wallen (Aug. 11, 1997), 12th Dist. No. CA970-2-017. Therefore, the trial court was not required to await a response from the State before ruling on appellant‘s motion. Appellant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING [APPELLANT‘S] MOTION TO VACATE AND RECONSTRUCT SENTENCE WITHOUT ISSUING FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO THE REASONS FOR THE DENIAL AND AS TO THE GROUNDS FOR RELIEF RELIED UPON IN THE MOTION.”
FOURTH ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING [APPELLANT‘S] MOTION TO VACATE AND RECONSTRUCT SENTENCE WHEN IT STATED GROUNDS THAT REQUIRED RELIEF TO BE GRANTED.”
{¶ 7} In his second and fourth assignments of error, appellant contends that the trial court erred in denying his petition for post-conviction relief and therein finding Blakely v. Washington (2004), 542 U.S. 296, inapplicable to his sentence. This Court finds no merit in these contentions.
{¶ 8} This Court reviews a trial court‘s grant or denial of a petition for post-conviction relief under an abuse of discretion standard. State v. Stallings, 9th Dist. No. 21969, 2004-Ohio-4571, at ¶ 5. An abuse of discretion implies more than an error in judgment; it connotes unreasonable arbitrary, or unconscionable conduct on the trial court‘s part. Id., citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 9} Appellant did not file a direct appeal. However, because he asserted constitutional violations in his motion, which was filed subsequent to the deadline for filing a direct appeal, this Court construes the motion as a petition for post-conviction relief as provided in
{¶ 10} Accordingly, appellant was required to comply with
{¶ 11} Appellant‘s motion was filed in 2005 — nearly six years after the expiration of the time to file an appeal — and was therefore, clearly untimely.
“(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
“(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.”
{¶ 12} Appellant contends that, under the grounds enunciated in Blakely, his sentence is contrary to law. Appellant asserts that Blakely constitutes “a new federal or state right that applies retroactively to persons in [his] situation[.]”
{¶ 13} As stated herein, in Booker, supra, the United States Supreme Court limited its holdings in Blakely and Apprendi to cases on direct review. Similarly, in Foster, the Ohio Supreme Court restricted retroactive application of its holding to cases on direct review. Appellant‘s case is before us on appeal from a denial of his petition for post-conviction relief, not from direct appeal. As such, appellant has failed to meet his burden under
THIRD ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN NOT GRANTING A HEARING ON [APPELLANT‘S] MOTION TO VACATE AND RECONSTRUCT SENTENCE.”
{¶ 14} In his third assignment of error, appellant argues that the trial court erred in denying his motion for post-conviction relief without holding an evidentiary hearing. Given this Court‘s conclusion that the trial court was without jurisdiction to consider appellant‘s untimely petition for post-conviction relief, the trial court did not err by failing to hold an evidentiary hearing before dismissing that petition. See State v. Sprenz, 9th Dist. No. 22433, 2005-Ohio-1491, at ¶ 15. Appellant‘s third assignment of error is overruled.
III.
{¶ 15} Appellant‘s four assignments of error are overruled, and the judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to appellant.
Slaby, P.J. Whit