State v. PorterState v. Porter
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Juliа R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Lamar Porter, pro se.
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I. Introduction
{¶ 1} Appellant, Lamar Porter, аppeals from the judgment of the Lucas County Court of Common Pleas, denying his “Motion to Correct Illegal Sentence,” in which
A. Facts and Procedural Background
{¶ 2} In 2004, following a jury triаl, appellant was convicted of the lesser-included offense of felony murder, with a firearm specification, and of aggravated robbery, with a firearm specification. The trial court sentenced appellant to life in prison with the possibility of parole in 15 yeаrs on the conviction for felony murder, three years in prison on the conviction for aggravated robbery, to be served consecutively, and three years in prison on the merged firearm specifications, also to be served consecutively.
{¶ 3} Appellant filed a direct appeal from his conviction, but did not raise the issue of allied offenses of similar import. On February 10, 2006, we affirmed his conviction and sentenсe in State v. Porter, 6th Dist. No. L-04-1278, 2006-Ohio-589, appeal not accepted, 110 Ohio St.3d 1410, 2006-Ohio-3306, 850 N.E.2d 72.
{¶ 4} Thereafter, appellant filed his first petition for postconviction relief on May 30, 2008, arguing that his aggravated robbery indictment was defective pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. The trial court dismissed this petition on October 9, 2008.
{¶ 5} Appellant next filed a “Motion for Issuance of Nunc Pro Tunc Judgment Entry” on December 21, 2011, because his original sentencing entry did not reflect that he was found guilty by a jury. The trial court, complying with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, entered the nunc pro tunc judgment on
{¶ 6} The genesis of the present matter occurred on July 16, 2012, when appellant filed his “Motion to Correct Illegal Sentence,” arguing that his convictions for felony murder and aggravated robbery should have merged as allied offenses of similar import. On August 6, 2012, the trial court denied this motion as an untimely petition for рostconviction relief, and because it failed on the merits.
B. Assignment of Error
{¶ 7} Appellant now appeals raising a single assignment of error:
The trial court erred to the prejudice [sic] when it did not grant Mr. Porter‘s “Motion to Correct Illegal Sentence.
II. Analysis
{¶ 8} We initially note that appellant‘s “Mоtion to Correct Illegal Sentence” is properly construed as a petition for postconviction relief. State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997), syllabus (“Where a criminаl defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 9} A petition for postconviction relief “shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction.”
{¶ 10} “A trial court has no jurisdiction to consider an untimely petition for postconviction relief unless the untimeliness is excused under
{¶ 11} Here, apрellant does not argue that this exception applies. Instead, he argues that his prior appeals are a nullity because there has never been a final judgment of conviction in this case, and therefore his postconviction petition was actually filed
{¶ 12} Alternatively, appellant argues that the failure to merge allied offenses of similar import results in a void sentence, which may be challеnged even by an untimely petition for postconviction relief. However, appellant is incorrect; “the failure to merge allied offenses at sentencing does not render a sentence void.” Guevara, 6th Dist. No. L-12-1218, 2013-Ohio-728, at ¶ 8. Thus, his second argument is without merit.
{¶ 13} Moreover, appellant‘s allied offenses claim fails on its merits. Appellant bases his argument on the standard set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Johnson, though, does not apply retroactively. “A new judicial ruling may be applied only to casеs that are pending on the announcement date. * * * The new judicial ruling may not be applied retroactively to a conviction that has become final, i.e., where the accused has exhausted all of his appellate remedies.” Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6. Here, appellant
{¶ 14} Accordingly, we hold that the trial cоurt did not abuse its discretion in denying appellant‘s petition for postconviction relief. Appellant‘s assignment of error is not well-taken.
III. Conclusion
{¶ 15} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this aрpeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE
Arlene Singer, P.J. _______________________________ JUDGE
Stephen A. Yarbrough, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.