State v. RobinsonState v. Robinson
OPINION
{¶ 1} Defendant-appellant, Michael S. Robinson, appeals from a judgment of the Franklin County Court of Common Pleas denying his
{¶ 2} By indictment filed July 3, 1991, defendant was charged with two counts of aggravated murder in violation of
{¶ 3} On March 15, 2006, defendant filed a petition for post-conviction relief, contending the trial court violated Foster, supra, in imposing consecutive sentences. By judgment entry filed March 31, 2006, the trial court denied defendant‘s petition, concluding (1) defendant‘s petition was untimely, and (2) Foster does not apply to defendant‘s sentence.
{¶ 4} Defendant appeals, assigning two errors:
Assignment of error No. 1:
The trial court abused its discretion in stating that defendant‘s petition was filed untimely in accord with
O.R.C. § 2953.23(A) Assignment of error No. 2:
The trial court abused its discretion in stating that State v. Foster, Supra, does not apply to the defendant.
{¶ 5} Defendant‘s two assignments of error are interrelated and together assert the trial court erred in concluding Foster does not warrant re-examination of his 1992 conviction and sentence.
{¶ 6} The post-conviction relief process is a collateral civil attack on a criminal judgment, not an appeal of the judgment. State v. Steffen (1994), 70 Ohio St.3d 399, 410. “It is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained” in the trial court record. State v. Murphy (Dec. 26, 2000), Franklin App. No. 00AP-233, discretionary appeal not allowed (2001), 92 Ohio St.3d 1441. Post-conviction relief is not a constitutional right, but rather is a narrow remedy which affords a petitioner no rights beyond those granted by statute. State v. Calhoun (1999), 86 Ohio St.3d 279, 281. A post-conviction petition does not provide a petitioner a second opportunity to litigate his or her conviction. State v. Hessler, Franklin App. No. 01AP-1011, 2002-Ohio-3321, at ¶ 32; Murphy, supra.
{¶ 7}
{¶ 8} Pursuant to
{¶ 9} Contrary to defendant‘s contentions, this court has concluded Blakely does not recognize a new federal or state right that applies retroactively. State v. Myers, Franklin App. No. 05AP-228, 2005-Ohio-5998, discretionary appeal not allowed (2003), 100 Ohio St.3d 1531 (concluding Blakely does not apply retroactively to cases seeking collateral review of a conviction); State v. Cruse, Franklin App. No. 05AP-125, 2005-Ohio-5095, discretionary appeal not allowed (2002), 97 Ohio St.3d 1422; see, also, State v. Stillman, Fairfield App. No. 2005-CA-55, 2005-Ohio-6299, discretionary appeal not allowed (2006), 108 Ohio St.3d 1489 (concluding the United States Supreme Court did not make the decision in Blakely retroactive to cases already final on direct review). Because Blakely does not recognize a new federal or state right that applies retroactively, Foster, premised on Blakely, similarly does not. State v. Wilson, Franklin App. No. 05AP-939, 2006-Ohio-2750, at ¶ 15. Accordingly, defendant‘s petition is untimely, and the trial court properly determined it lacked jurisdiction to consider it. State v. Bivens, Franklin App. No. 05AP-1270, 2006-Ohio-4340 (noting that the timeliness requirement of
{¶ 10} Even if defendant could overcome the jurisdictional hurdle his untimely petition presented, defendant‘s attempt to apply Blakely and Foster to his sentence would be unpersuasive. Foster addresses the constitutionality of sentences imposed pursuant to Am. Sub. S.B. No. 2, effective July 1, 1996 and applicable only to offenses committed on or after that date. State v. Rush (1998), 83 Ohio St.3d 53, certiorari denied (1999), 525 U.S. 1151. Defendant was indicted in 1991 and convicted in 1992. The laws to which Blakely and Foster apply did not exist when defendant committed the crimes that are the subject of his petition. As a result, Blakely and Foster do not apply to defendant‘s sentence.
{¶ 11} Because the trial court properly denied defendant‘s petition for post-conviction relief, we overrule defendant‘s two assignments of error and affirm the judgment of the trial court.
Judgment affirmed.