State v. MillsState v. Mills
OPINION
{¶ 1} Defendant-appellant appeals the decision of the Belmont County Common Pleas Court which denied his petition for post-conviction relief without a hearing. The main issue on appeal is whether the basis for the Ohio Supreme Court‘s Foster holding can be used to remand a sentence by way of a timely petition for post-conviction relief. For the following reasons, the judgment of the trial court is affirmed as Foster issues are not proper subjects for collateral review.
STATEMENT OF THE CASE
{¶ 2} In April 2005, in case number 05CR99, appellant was indicted on two counts: possession of crack cocaine in an amount more than ten grams but less than twenty-five grams; and, trafficking in crack cocaine in an amount more than one gram but less than five grams. While out on bond, he was again arrested for possession of crack cocaine in an amount more than ten grams but less than twenty-five grams, resulting in case number 05CR133.
{¶ 3} On May 13, 2005, appellant entered a plea agreement in both cases whereby he pled guilty to the two possession charges, which were second degree felonies with maximum sentences of eight years. In return for his plea, the state dismissed the trafficking charge and agreed to recommend concurrent five-year sentences. A sentencing hearing was held on May 20, 2005.
{¶ 4} In a May 26, 2005 entry, the court sentenced appellant to five years on each count to be served concurrently as recommended by the state. The court made findings for not allowing community control. The court noted that appellant had served prior time in prison and found that a longer prison term was appropriate due to appellant‘s criminal history, his commission of one offense while out on bail for other offenses and the threat he posed to society due to the fact that he had enough crack cocaine to imply intent to distribute.1
{¶ 5} On September 19, 2005, appellant filed a timely petition for post-conviction relief in the trial court. See
{¶ 6} On December 15, 2005, the trial court denied appellant‘s petition for post-conviction relief without a hearing. The trial court found there was no violation of appellant‘s constitutional rights. The court noted that this appellate district has held that Blakely was inapplicable to Ohio‘s sentencing scheme. The court then concluded that the findings required to deviate from the minimum sentence do not implicate the Sixth Amendment.
{¶ 7} In February 2006, the Ohio Supreme Court released State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In that case, the Court held that Blakely did in fact invalidate various provisions in Ohio‘s felony sentencing scheme. Relevant to this case, the Court held that
{¶ 8} On April 3, 2006, appellant sought leave to file a delayed appeal of the denial of his post-conviction petition. On April 24, 2006, this court found that appellant did not need leave to appeal because the trial court did not order the clerk to serve him with a copy of its December 15, 2005 entry in this civil, post-conviction case and because the clerk did not post any entries establishing that service was accomplished.
ASSIGNMENTS OF ERROR
{¶ 9} Appellant sets forth three interrelated assignments of error:
{¶ 10} “THE TRIAL COURT DENIED THE DEFENDANT DUE PROCESS WHEN IT DENIED HIS POST-CONVICTION MOTION FOR RELIEF WITHOUT A HEARING OR APPOINTMENT OF COUNSEL.”
{¶ 11} “THE TRIAL COURT VIOLATED THE APPELLANT‘S CONSTITUTIONAL AND DUE PROCESS RIGHTS WHEN IT BOTH IMPOSED THE SENTENCE AND DENIED HIS POST-CONVICTION ACTION UNDER THE INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 12} “THE TRIAL COURT DENIED DUE PROCESS, EQUAL PROTECTION, AND THEN FAILED TO PERFORM IYS [SIC] DUTY TO GUARANTEEE [SIC] EVERY CRIMINAL DEFENDANT HIS CONSTITUTIONAL RIGHTS WHEN IT IMPOSED THIS UNCONSTITUTIONAL SENTENCE.”
{¶ 13} Appellant filed a twenty-five page brief on July 5, 2006. He complains that he was not granted a hearing or appointed counsel for the post-conviction proceedings. He also states that his prior counsel was ineffective for failing to raise the sentencing issues he now raises. Appellant points out that the Foster Court has agreed that Ohio‘s felony sentencing scheme is unconstitutional. He states that the findings required to deviate from a minimum sentence violated his right to a jury trial. He concludes that he should not have been sentenced to more than the minimum of two years on each count to run concurrently.
{¶ 14} Buried within his brief, appellant claims that the brief also represents a petition for a writ of habeas corpus. His grounds for such petition are that the remedy imposed by the Ohio Supreme Court is a violation of the separation of powers and ex post facto clauses. He also takes issue with the Supreme Court‘s statement that its Foster holding only applies to cases on direct review or not yet final.
{¶ 15} The state responded with one page of facts and a mere half-page argument. That argument solely points to the trial court‘s decision and generally concludes that appellant was properly sentenced under Foster.
LAW AND ANALYSIS
{¶ 16} A defendant seeking to challenge his conviction through a petition for post-conviction relief is not automatically entitled to a hearing. State v. Cole (1982), 2 Ohio St.3d 112, 113. An evidentiary hearing need not be granted if the petitioner fails to meet his initial burden of alleging operative facts to show substantive grounds for relief. State v. Calhoun (1999), 86 Ohio St.3d 279, 282-83.
{¶ 17} Pursuant to
{¶ 18} Appellant‘s petition for post-conviction relief relied upon the precursors of Foster to allege his sentence was constitutionally void. (Foster was not released at the time he filed his petition). These precursors (Apprendi, Blakely and Booker) were all decided by the United States Supreme Court prior to appellant‘s conviction and sentencing. And, these decisions had been applied in some Ohio appellate districts to invalidate felony sentences.
{¶ 19} Merely because this district and many others disagreed with the applicability of those Supreme Court cases, does not allow a post-conviction relief petition to be filed on grounds that were available for appeal. See Reynolds, 79 Ohio St.3d at 161 (even unfavorable controlling law in one‘s appellate district which is later overturned will not allow the issue to be raised in a post-conviction petition if it could have been argued on direct appeal). Since appellant could have raised the arguments presented in his post-conviction petition in a direct appeal, he is barred from presenting them in a post-conviction petition under the doctrine of res judicata. See id.
{¶ 20} On the other hand, because this court refused to apply Blakely to Ohio‘s sentencing scheme, the failure to file a direct appeal on this issue would not constitute ineffective assistance of counsel. See State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, ¶ 9 (counsel cannot be faulted for failing to predict the law would change). There is no defective performance in the form of an error so serious that counsel was no longer performing as the counsel required by the Sixth Amendment. See Strickland v. Washington (1984), 466 U.S. 668, 687. Moreover, appellant fails to establish how ineffective assistance of counsel is recognizable in a post-conviction relief petition under the facts herein. As aforementioned, this court has already denied his motion to reopen his appeal on these grounds.
{¶ 21} Furthermore, the Ohio Supreme Court made the following enlightening statements in Foster regarding the scope of its holding‘s retroactivity:
{¶ 22} “Finally, the holding in Booker was applied `to all cases on direct review.’ Id. at 268, 125 S.Ct. 738, 160 L.Ed.2d 621, citing Griffith v. Kentucky (1987), 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649.” Foster at ¶ 11.
{¶ 23} “These cases and those pending on direct review must be remanded to trial courts for new sentencing hearings not inconsistent with this opinion.” Id. at ¶ 104.
{¶ 24} “As the Supreme Court mandated in Booker, we must apply this holding to all cases on direct review. Booker, 543 U.S. at 268, 125 S.Ct. 738, 160 L.Ed.2d 621, quoting Griffith v. Kentucky, 479 U.S. at 328, 107 S.Ct. 708, 93 L.Ed.2d 649. (‘A new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases * * * pending on direct review or not yet final‘).” Id. at ¶ 106.
{¶ 25} Relying on these statements, the Fifth and Twelfth Districts have both held that a defendant cannot raise Foster by way of even a timely post-conviction relief petition. State v. Norris, 5th Dist. No. CT2005-0039, 2006-Ohio-3508, ¶ 11, 13; State v. Sims, 12 Dist. No. CA2005-08-077, 2006-Ohio-3091, ¶ 5. See, also, State v. Harris, 6th Dist. No. S-05-014, 2006-Ohio-1396, ¶ 16 (using the above quoted statements as an alternative reason for denying an untimely petition seeking resentencing under Foster). We agree that the remand required by Foster is only applicable to those cases on direct review in the appeal from the criminal conviction, not to cases on review from the civil denial of post-conviction relief.
{¶ 26} As for appellant‘s suggestion that this is an original action, we cannot construe part of an appellant‘s brief as a petition for a writ of habeas corpus. See, generally,
CONCLUSION
{¶ 27} By stating that the cases before it and those pending on direct review must be remanded for new sentencing hearings, the Foster Court implicitly ruled that cases pending on post-conviction appeals need not be remanded and that its holding will not extend to future cases on collateral review. See Foster at ¶ 104, 106. Such interpretation is proper considering the general rules of res judicata regarding post-conviction petitions, which are not overcome in this case. Accordingly, the Foster issue raised by appellant was not the proper topic for a post-conviction relief petition. Thus, neither an evidentiary hearing nor appointment of counsel was required.
{¶ 28} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.