State v. SansomState v. Sansom
Rendered on the 30th day of April, 2010.
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NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 115 Brookside Drive, Yellow Springs, Ohio 45387
Attorney for Defendant-Appellant
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on the Notice of Appeal of Ronald Sansom, filed September 10, 2009. On June 14, 2007, Sansom was indicted on one count of operating a vehicle under the influence of alcohol or a drug of abuse, in violation of
{¶ 2} Sansom was arrested following a traffic stop after Officer Jade Michael Cooper, of the Urbana Police Division, observed Sansom hesitating at a stop light after it turned green and then making a wide left turn. Sansom smelled of alcohol, had glassy eyes, and his speech was slurred. He failed a horizontal gaze nystagmus test. Sansom refused a breathalyzer test, and he refused to sign a form acknowledging that his refusal would result in an automatic suspension of his driver‘s license. Sansom pled not guilty, and following a jury trial, he was convicted as charged. Sansom was sentenced to 30 months, including a 60 day mandatory term, and he was fined $800.00. On the specification, he received a five year mandatory sentence, for a total sentence of seven years and six months. Sansom‘s driver‘s license was suspended for 15 years, and mandatory substance abuse counseling was ordered. We affirmed his conviction and sentence on November 26, 2008. State v. Sansom, Montgomery App. No. 2007 CA 36, 2008-Ohio-6240.
{¶ 3} On April 24, 2009, Sansom filed a Petition for Post Conviction Relief, arguing that he received ineffective assistance of counsel. The petition is supported with Sansom‘s affidavit as well as that of his fiancee, Amanda Terrell. Three unauthenticated letters are also attached: (1) from Sansom to Sansom‘s current appellate counsel; (2) from Sansom, dated July 17, 2008, to Sansom‘s prior appellate counsel, and (3) from Sansom‘s prior appellate counsel, dated August 29, 2008, to Sansom. According to Sansom, he “told his trial counsel to subpoena his medical records and his doctor for trial. He did not know that the lawyer had not done so. He did not discover that there had been no attempt to
{¶ 4} On May 12, 2009, the State filed a Motion for Summary Judgment, and Sansom responded. The trial court granted the State‘s motion on August 17, 2009, without a hearing. In doing so, the court determined that Sansom‘s petition was untimely, and that he “is not entitled to tolling or extension of said filing deadline pursuant to
{¶ 5} Sansom asserts one assignment of error as follows:
{¶ 7} “Civ. R. 56(C) provides that summary judgment may be granted when the moving party demonstrates that (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. (Internal citations omitted). Our review of the trial court‘s decision to grant summary judgment is de novo.” Cohen v. G/C Contracting Corp., Greene App. No. 2006 CA 102, 2007-Ohio-4888.
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{¶ 10} Finally, “‘A post conviction proceeding is not an appeal of a criminal conviction, but rather, a collateral civil attack on the judgment.‘” State v. Gondor (2006), 112 Ohio St.3d 377, 2006-Ohio-6676, ¶ 48. “In the interest of providing finality to judgments of conviction, courts construe the post-conviction relief allowed under
{¶ 11} The State directs our attention to the following exchange at trial and we agree that the colloquy belies Sansom‘s claim that he was “unavoidably prevented” from discovering that his medical records and physician had not been subpoenaed until he was
{¶ 12} “Q. When you got out of the vehicle, the officer testified that you stumbled getting out. Do you recall that?
{¶ 13} “A. I remember his saying that, yes.
{¶ 14} * *
{¶ 15} “Q. While we are talking about that, do you have any other physical disabilities?
{¶ 16} “A. Yes. I have got three bulging herniated disks in my back. L3, L4, L5.
{¶ 17} “Q. Did you show me your medical records?
{¶ 18} “A. Yes.
{¶ 19} “Q. Who was the doctor who treated you for the herniated disks?
{¶ 20} “A. Dr. Paul Andorfer.
{¶ 21} “Q. MR. SCHOCKLING: Objection, Your Honor.
{¶ 22} “THE COURT: Grounds?
{¶ 23} “MR. SCHOCKLING: I don‘t know where defense counsel is going with this, but the only discovery the State has received was the name of the first witness so if there is any sort of testimony here as far as the medical records, the State has not had the opportunity to review those.
{¶ 24} “The State would ask the testimony be limited to simply to what defendant‘s condition is and any medical records or any possible doctors who he treated with, that he not be allowed to testify as to that.
{¶ 25} “THE COURT: Sustained.”
{¶ 27} Similarly, regarding Sansom‘s assertion that his counsel failed to request a jury view, it is obvious that Sansom, having been present at trial, was not unavoidably prevented from discovering that a jury view did not occur until months after trial.
{¶ 28} Regarding Sansom‘s assertion that his counsel‘s performance was deficient in that he did not advise Sansom of post conviction remedies, “R.C. Chapter 2953 explicitly provides for the remedy of post-conviction relief and is available to anyone. Nothing prevented [Sansom] or his appellate counsel from finding the remedy in the revised code. That fact that neither [Sansom] nor his appellate counsel searched the revised code for such a remedy or realized that they had a right to file a petition for post-conviction relief does not amount to undiscoverable facts. Thus, no undiscoverable facts exist to support [Sansom‘s] petition and he cannot meet the requirements of
{¶ 29} Finally, regarding the errors which Sansom asserts affected his sentence, as the trial court noted, Sansom “was or should have been aware of this alleged error at [the] sentencing hearing. Thus, claims based on these alleged facts are time-barred pursuant to
{¶ 30} There being no genuine of material fact that Sansom‘s petition was untimely, and that the trial court lacked jurisdiction to address its merits, the trial court properly granted the State‘s motion for summary judgment and denied Sansom‘s petition without a hearing. Sansom‘s assigned error is overruled, and the judgment of the trial court is affirmed.
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GRADY, J. and RINGLAND, J., concur.
(Hon. Robert P. Ringland, Twelfth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Nick A. Selvaggio
George A. Katchmer
Hon. Roger B. Wilson