State v. SmithState v. Smith
DECISION AND JOURNAL ENTRY
This сause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made: {¶ 1} Appellant, Scott Smith, appeals from his convictions in the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶ 2} In May of 1999, a Lorain County jury convicted Appellant of one сount of engaging in a pattern of corrupt activity, in violation of
{¶ 3} On June 21, 1999, Appellant filed a notice of apрeal with this Court. On June 28, 2000, this Court affirmed Appellant‘s conviction and sentence. See State v. Smith (June 28, 2000), 9th Dist. No. 99CA007387. On June 20, 2005, Appellant filed a motion to vacate and reconstruсt his sentence. The trial court denied Appellant‘s motion on July 7, 2005. Appellant timely appealed the denial of his motion for post-conviction relief, raising four assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“IT IS PREJUDICIAL ERROR OF THE COURT TO HOLD THAT BLAKELY DOES NOT APPLY TO [APPELLANT], AND MORE SO, VIOLATES HIS GUARANTEES UNDER THE
ASSIGNMENT OF ERROR IV
“THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING [APPELLANT‘S] MOTION TO VACATE AND RECONSTRUCT SENTENCE WITHOUT FIRST ISSUING FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO THE REASONS FOR THE DENIAL AND AS TO THE GROUNDS FOR RELIEF RELIED UPON IN THE MOTION.”
{¶ 4} In his first and fourth assignments of error, Appellant contends that the trial court erred in denying his petition for pоst-conviction relief and therein finding Blakely v. Washington (2004), 542 U.S. 296, inapplicable to his sentence. We find no merit in these contentions.
{¶ 5} This Court reviews a trial court‘s grant or denial оf a petition for post-conviction relief under an abuse of discretion standard. State v. Stallings, 9th Dist. No. 21969, 2004-Ohio-4571, at ¶ 5. An abuse of discretion implies more than an error in judgment; it connotes unreasonable arbitrary, or unconscionable conduct on the trial court‘s part. Id., citing Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 6} In State v. Reynolds (1997), 79 Ohio St.3d 158, syllabus, the Ohio Supreme Court held that “[w]here a criminal defеndant, 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 post-conviction relief as defined in
{¶ 7} Appellant‘s motion was filed in 2005 — nearly six years after the expiration of the time to file an appeal — and was therefore, clearly untimely.
“(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
2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitioner‘s situation, and the petition asserts a clаim based on that right.“(b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder wоuld 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.”
{¶ 8} Appellant contends that, under the grounds enunciated in Blakely, his sentence is contrary to law. Appellant asserts that Blakely constitutes “a new federal or state right that applies retroactively to persons in [his] situation[.]”
{¶ 9} As stated herein, in Booker, supra, the United States Supreme Court limited its holdings in Blakely and Apprendi to cases on direct review. Similarly, in Foster, the Ohio Supreme Court restricted rеtroactive application of its holding to cases on direct review. Appellant‘s case is before us on appeal from a deniаl of his petition for post-conviction relief, not from direct appeal. As such, Appellant has failed to meet his burden under
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN DENYING [APPELLANT‘S] MOTION TO VACATE AND RECONSTRUCT SENTENCE WITHOUT FIRST ALLOWING THE PROSECUTING ATTORNEY TO RESPOND TO IT.”
{¶ 10} In his second assignment of error, Appellant contends that the trial court erred in denying his motion to vacate and reconstruct sentence without allowing the State tо respond. Appellant‘s assignment of error lacks merit.
{¶ 11}
“Within ten days after the docketing of the petition, or within any further time that the court may fix for good сause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are raised, either party may move for summаry judgment. The right to summary judgment shall appear on the face of the record.”
Although this provision provides that the State “shall respond“, the State‘s duty to rеspond is discretionary, not mandatory. State v. Sklenar (1991), 71 Ohio App.3d 444, 446; State v. Wallen (Aug. 11, 1997), 12th Dist. No. CA97-02-017, at *3. Therefore, the trial court was not required to await a response from the State before ruling on Appellant‘s motion. Appellant‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED IN NOT HOLDING AN EVIDENTIARY HEARING.”
{¶ 12} In his third assignment of error, Appellant contends that the trial court erred in denying his motion for post-conviction relief without holding an evidentiary hearing. Given this Court‘s conclusion that the trial court was without jurisdiction to consider Appellant‘s untimely petition for post-conviction relief, the trial court did not err by failing to hold an evidentiary hearing before dismissing that petition. See State v. Sprenz, 9th Dist. No. 22433, 2005-Ohio-1491, at ¶ 15. Appellant‘s third assignment of error is overruled.
III.
{¶ 13} Appellant‘s four assignments of error are overruled, and the judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this aрpeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment intо execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitutе the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.