State v. SmithState v. Smith
{¶ 1} Jerome Smith appeals the Washington County Common Pleas Court‘s dismissal of his petition for post-conviction relief for lack of jurisdiction. On appeal, Smith contends that the trial court erred when it enhanced his sentence by using facts neither admitted by him nor found by a jury. Thus, he concludes that his sentence is void because he received a non-minimum sentence in violation of Apprendi v. New Jersey (2000), 530 U.S. 466, Blakely v. Washington (2004), 542 U.S. 296, and State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Because Smith did not file his petition within the 180-day time period as required by
I.
{¶ 2} On October 5, 2004, Smith pled guilty to possession of drugs, a third degree felony. He received a non-minimum, three-year prison term on November 16, 2004. The court filed an amended sentencing entry on December 13, 2004 to reflect that it had also imposed a three-year driver‘s license suspension. Smith did not file a direct appeal.
{¶ 3} On May 31, 2006, Smith filed a “Motion to Vacate and Modify Judgment.” He asked the court to re-sentence him under the Foster holding and in accordance with Apprendi and Blakely. The court dismissed Smith‘s motion without a hearing because it held that it lacked jurisdiction. It cited State v. Barney, Meigs App. No. 05CA11, 2006-Ohio-4676 in support.
{¶ 4} In a pro se appeal of the trial court‘s judgment, Smith asserts the following two assignments of error: I. “THE TRIAL COURT COMMITTED PREJUDICIAL REVERSABLE ERROR, PURSUANT TO THE
II.
{¶ 5} Smith‘s “Motion to Vacate and Modify Judgment” sought to vacate his sentence due to alleged constitutional violations. Therefore, the trial court properly treated his motion as a petition for post-conviction relief as defined in
{¶ 6} Because Smith‘s assignments of error are interrelated, we consider them together. The crux of Smith‘s appeal is that the trial court‘s sentence is void for constitutional reasons because the trial court enhanced his sentence by considering facts neither admitted by him nor found by a jury. He cites Apprendi, Blakely, and Foster in support of his arguments.
{¶ 7} This Court‘s standard of review is de novo when the trial court neither holds an evidentiary hearing nor makes findings of fact before dismissing or denying a petition for post-conviction relief that involves sentencing issues. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶¶ 46, 50. Hence, we independently review the record without deference to the trial court‘s decision.
{¶ 8}
{¶ 9} Under
{¶ 10} Pursuant to
{¶ 11} If a defendant neither timely files his petition under
{¶ 12} Here, Smith had until January 12, 2005 to file a direct appeal from the December 13, 2004 sentencing entry. Smith had 180 days from January 12, 2005 to file his petition for post-conviction relief. However, he did not file it until May 31, 2006. Hence, Smith‘s petition was untimely under
Consequently, Smith had to comport with
{¶ 13} Smith essentially contends that his untimely petition complies with
{¶ 14} In Barney, we held that the right created in Apprendi and followed in Blakely and Foster did not apply “retroactively” to cases that were not on direct review. See United States v. Booker (2005), 543 U.S. 220 (holdings in Apprendi and Blakely are restricted to cases on direct review); Foster (holding limited to cases on direct review or not yet final). Therefore, a defendant who does not directly appeal a final judgment cannot use the right created in Apprendi to satisfy the “new federal or state right” exception to the 180-day period for filing a petition for post-conviction relief. See
{¶ 15} The Foster court followed Apprendi and Blakely and found some of Ohio‘s sentencing statutes unconstitutional.
{¶ 16} Here, we agree with the trial court that it lacked jurisdiction to consider Smith‘s petition. Smith did not directly appeal his underlying possession of drugs sentence. Thus, any right created in Apprendi, Blakely, or Foster is not retroactive to his situation because his case is on collateral review, not direct review. See Gondor, supra, at 387-388, quoting State v. Steffen (1994), 70 Ohio St.3d 399, 410 (“A post-conviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment.“). Because Smith failed to comply with
{¶ 17} Further, the doctrine of res judicata applies. The trial court sentenced Smith in late 2004, after Apprendi and Blakely were decided. Therefore, Smith could have filed a direct appeal of his sentence based on Apprendi and Blakely. See, e.g., Cottrill, supra, at ¶ 14.
{¶ 18} Therefore, we find that Smith‘s untimely petition fails to comport with
{¶ 19} Accordingly, we overrule both of Smith‘s assignments of error and affirm the trial court‘s dismissal of his petition.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that the costs herein be taxed to the Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Court of Common Pleas to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 for the Rules of Appellate Procedure. Exceptions.
McFarland, P.J. and Harsha, J.: Concur in Judgment and Opinion.