State v. NorrisState v. Norris
{¶1} Appellant Dowell W. Norris appeals the dismissal, without a hearing, of a petition for postconviction relief. He was convicted and sentenced in 2006 on two counts of illegal assembly or possession of chemicals for the manufacture of drugs. He was sentenced to two consecutive five-year prison terms. He has had a direct appeal and the judgment was affirmed, and he litigated a habeas petition in federal court, which was denied. Appellant‘s petition for postconviction relief was not timely filed according to the requirements of
Case History
{¶2} Appellant was indicted in the Monroe County Court of Common Pleas on October 21, 2005, on two drug counts, violations of
{¶3} On April 29, 2011, Appellant filed a petition for postconviction relief pursuant to
ASSIGNMENTS OF ERROR NOS. 1 AND 2
TRIAL COURT COMMITTED PLAIN ERROR BY DENYING APPELLANT [SIC] PETITION FOR POST-CONVICTION WITHOUT PROVIDING FINDINGS OF FACTS AND CONCLUSIONS OF LAW WITH RESPECT TO SUCH DISMISSAL.
TRIAL COURT COMMITTED PLAIN ERROR BY DENYING APPELLANT‘S POST-CONVICTION PETITION WITHOUT A HEARING ON THE MERITS.
{¶4} This is an appeal of a dismissal of a petition for postconviction rеlief. An appellate court reviews a trial court‘s denial of a petition for postconviction relief under an abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶58. An abuse of discretion implies an arbitrary, unreasonable, unconscionable attitude on the part of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶6} With respect to the failure to hold a hearing,
{¶7} A postconviction proceeding is not an appeal of a criminal conviсtion; it is a collateral civil attack on the judgment. Gondor at ¶48;
{¶8} Petitions for postconviction relief are governed by
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{¶10} The 180-day time period defined in
{¶11} Based on the plain language of
(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of thе Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successivе petitions for similar relief on behalf of a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(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 petitiоn 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 pеtitioner 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.
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{¶13} Appellant‘s explanation for the late filing of his petition appears to be that new caselaw has arisen that now entitles him to relief. He cites the case of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, which was decided on December 29, 2010. However, the effect of Johnson was to revise the law regarding how trial courts determine if two offenses are allied in light of the allied offense statute. The Johnson Court held: “When determining whether two offenses are allied offenses of
{¶14} The Ohio Supreme Court in Johnson has no bearing on Appellant‘s petition for postconviction relief. Johnson identified a change in the mаnner in which a state law is interpreted and applied. It is not a United States Supreme Court case, and thus, does not identify any new, retroactive, federal or state right recognized by the United States Supreme Court. Appellant does not even mention any United States Supreme Court case in his brief. Thus, he is precluded from relief under
{¶15} Further, the doctrine of res judicata defeats Apрellant‘s claims regarding the application of the allied offense statute. The issue of merger of allied offenses could have been raised on direct appeal, and his failure to raise it on direct appeal prevents it from being raised in support of postconviction relief. See State v. Timmons, 10th Dist. No. 11AP–895, 2012-Ohio-2079, ¶11, quoting State v. Rutledge, 10th Dist. No. 11AP-853, 2012-Ohio-2036, ¶13 (“even assuming that appellant‘s petition had been timely, the trial court would have been barred from considering the claims under the doctrine of res judicata as appellant‘s arguments with respect to allied offenses and merger ‘under
{¶16} In conclusion, Appellant is challenging the dismissal of his petition for postconviction relief. The petition was not filed within the 180-day time limit set forth in
Donofrio, J., concurs.
DeGenaro, P.J., concurs.