2006 Ohio 6203 | Ohio Ct. App. | 2006
{¶ 2} In 1998, Scuba was convicted of aggravated robbery, in violation of R.C.
{¶ 3} Upon remand, the trial court resentenced Scuba to a nine-year term on the aggravated robbery conviction, a seven-year term on the felonious assault conviction, and a three-year term on the firearm specifications. These sentences were also ordered to be served consecutively, resulting in an aggregate prison term of 19 years. Scuba appealed the trial court's judgment to this court, and this court affirmed the judgment entry of sentence.3
{¶ 4} In May 2006, Scuba filed a "motion to correct unlawful sentence." The basis of Scuba's motion was that his sentence was unlawful in light of the Supreme Court of Ohio's decision inState v. Foster, which found certain portions of Ohio's sentencing statutes unconstitutional, because they mandated judicial factfinding.4 Specifically, the Supreme Court of Ohio declared portions of R.C.
{¶ 5} The state filed a motion in opposition to Scuba's motion to correct his sentence. The state argued that theFoster decision only applied to cases then pending on direct review and that the decision did not apply to Scuba. The trial court denied Scuba's motion to correct his sentence.
{¶ 6} Scuba raises the following assignment of error:
{¶ 7} "The trial court erred as a matter of law in refusing to correct the unlawful sentence imposed in violation of the Sixth and Fourteenth Amendments, thereby violating the Due Process and Equal Protection Clauses and furthering the Sixth and Fourteenth Amendment violations."
{¶ 8} Scuba filed his motion pursuant to Crim.R. 57(B), which provides:
{¶ 9} "If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules of criminal procedure, and shall look to the rules of civil procedure and to the applicable law if no rule of criminal procedure exists."
{¶ 10} In this matter, Scuba sought relief following his conviction. By definition, Scuba sought postconviction relief. As the Supreme Court of Ohio has stated:
{¶ 11} "Where a criminal 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 R.C. 2953.21."6
{¶ 12} Pursuant to R.C.
{¶ 13} "(A) Whether a hearing is or is not held on a petition filed pursuant to section
{¶ 14} "(1) Both of the following apply:
{¶ 15} "(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
{¶ 16} "(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner 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.
{¶ 17} "(2) [This section concerns the petitioner being actually innocent of the crime as established by DNA evidence. It is not applicable to the case sub judice.]"
{¶ 18} Scuba's motion was filed well beyond the 180-day time limit provided in R.C.
{¶ 19} The exception delineated in subsection (A)(1)(a) does not apply to this matter. The additional rights described inBlakely v. Washington8 and State v. Foster9 do not apply to individuals in Scuba's situation. Specifically, in United States v. Booker, the United States Supreme Court held that the Blakely Sixth Amendment holding applies to "all cases on direct review."10 Similarly, the Supreme Court of Ohio, in applying the Blakely decision to Ohio's sentencing scheme, instructed that cases "pending on direct review" be remanded for resentencing hearings.11 Finally, this court and other appellate courts have limited the Blakely andFoster holdings to cases pending on direct appeal.12 Scuba's direct appeals of the trial court's judgment entries were final at the time of the Blakely and Foster decisions. Thus, these holdings do not retroactively apply to individuals in Scuba's situation.
{¶ 20} Moreover, the criteria in subsection (A)(1)(b) were not satisfied. This prong only concerns errors pertaining to the petioner's guilt or errors pertaining to the imposition of a death sentence. It does not apply to felony sentencing. Since subsections (A)(1)(a) and (A)(1)(b) of R.C.
{¶ 21} Scuba's motion was filed outside of the statutorily mandated 180-day period for filing petitions for postconviction relief. Also, none of the exceptions set forth in R.C.
{¶ 22} Scuba's assignment of error is without merit.
{¶ 23} The judgment of the trial court is affirmed.
Grendell, J., O'Toole, J., concur.
