STATE OF OHIO v. ALBERTO MEDINA
No. 110726
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 31, 2022
2022-Ohio-1070
MARY J. BOYLE, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-589200-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.
Alberto Medina, pro se.
MARY J. BOYLE, J.:
{¶ 1} Defendant-аppellant, Alberto Medina (“Medina“), pro se, appeals from the trial court‘s denial of his petition for postconviction relief. For the reasons set forth below, we affirm.
{¶ 3} In December 2014, Medina entered into a plea agreement with plaintiff-appellеe, the state of Ohio in which he pled guilty to an amended charge of aggravated murder with a three-year firearm specification (Count 1) and endangering children as charged in Counts 9-11. The remaining counts were dismissed. The court then proceeded to sentence Medina to a total of 33 years to life in prison, which was the jointly recommended sentence as part of the pleа agreement.
{¶ 4} In August 2016, more than a year and a half after sentencing, Medina filed a pro se motion for delayed appeal in State v. Medina, 8th Dist. Cuyahoga No. 104826, claiming that he was never advised of his right to appeal at sentencing.2 This court denied Medina‘s motion. Medina filed a pro se delayed appeal with the Ohio Supreme Court, which was denied in State v. Medina, 149 Ohio St.3d 1405,
{¶ 5} In June 2021, Medina filed a pro se petition for postconviction relief with the trial court. Medina argued that the trial court failed to advise him at sentencing of his right to appeal, including the right to appellate counsel. He supported the petition with his own affidavit, in which he stated, if he knew of his “constitutional rights tо appeal and have counsel on said appeal, [he] would certainly have appealed, minimally, on the issues of ineffective assistance of counsel and as to whethеr [his] plea was knowingly, voluntarily and intelligently made.” The state opposed, and the trial court denied the petition in July 2021.
{¶ 6} It is from this order that Medina appeals, raising the following three assignments of error for review, which shall be discussed together:
Assignment of Error One: [Medina] was denied due process of law under the Ohio and U.S. Constitutions when the trial court failed to provide him his right to appeal and subsequently denied his pоstconviction petition seeking to restore the jurisdiction of the court to provide him the constitutional rights which he was deprived of at sentencing pursuant to State v. Future, [8th Dist. Cuyahoga No. 96997, 2012-Ohio-2300], citing State v. Gover, [71 Ohio St.3d 577, 645 N.E.2d 1246 (1995)].
Assignment of Error Two: [Medina] was denied equal protection under the law as required by the Fourteenth Amendment to the U.S. Constitution when he was not afforded the same opportunity to have
Assignment of Error Three: [Medina] was denied the effective assistance of counsel when counsel failed to query for want of appeal, inform him of his right to appeal and his right to counsel on said apрeal, and other avenues for remedy of the denial of constitutional rights, to include a postconviction petition.
{¶ 7} Within these assigned errors, Medina argues his petition for postconvictiоn relief is proper under Future and that his direct appeal was untimely because he was unaware of the time limits to file an appeal. Medina claims his ignorance was due to the failures of both his defense counsel and the trial court to inform him of his appellate rights. Medina further claims that the denial of his right to a timely appeal and appellate counsel violates his constitutional rights to due process and equal protection. Medina also argues he was denied his right to effective assistance of counsel when defense counsel failed to explain his right to an appeal.
{¶ 8} In Future, the trial court failed to advise the defendant of his appellate rights. Id. at ¶ 2. The defendant then filed a motion for resentencing three years after his guilty plea, which the triаl court granted. Id. On appeal, this court, relying on Gover, noted that the appropriate remedy, in this instance, “is first to seek leave to file a delayed appeal with this court and, if unsuccessful, to then file a motion for postсonviction relief through
{¶ 10} The Gover Court held that since the denial of the right to appellate counsel was due to an error at the trial level, a motion before the appellate court was not the appropriate way for the defendant to seek relief. Id. at 580. Instead, ”Gover should himself file a petition for postconviction relief undеr
{¶ 11} However, at the time Gover was issued in 1995,
{¶ 12}
{¶ 13} Here, Medina‘s petition for postconviction relief was due in January 2016 since he did not file a direct appeal from his conviction. Medina, hоwever, did not file his petition until five and a half years later in June 2021. Therefore, Medina‘s
{¶ 14} Because none of these exceptions apply, the trial court was without jurisdiction to consider Medina‘s untimely petition for postconviction relief. State v. Schultz, 8th Dist. Cuyahoga No. 85430, 2005-Ohio-6627, ¶ 11, citing State v. Warren, 8th Dist. Cuyahoga No. 76612, 2000 Ohio App. LEXIS 5873 (Dec. 14, 2000); State v. Valentine, 8th Dist. Cuyahoga No. 77882, 2000 Ohio App. LEXIS 5686 (Dec. 7, 2000); State v. Wheatt, 8th Dist. Cuyahoga App. No. 77292, 2000 Ohio App. LEXIS 4953 (Oct. 26, 2000); State v. Gaddis, 8th Dist. Cuyahoga No. 77058, 2000 Ohio App. LEXIS 4765 (Oct. 12, 2000); see also State v. Williams, 8th Dist. Cuyahoga No. 100639, 2014-Ohio-3589, ¶ 7, citing State v. Hutton, 8th Dist. Cuyahoga No. 80763, 2007-Ohio-5443 (Where this court stated, “The time requirement for postconviction relief, pursuant to
{¶ 15} Accordingly, the first, second, and third assignments of error are overruled.
{¶ 16} Judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas сourt to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR