State of Ohio, Plaintiff-Appellee, v. Arnett C. Smotherman, Defendant-Appellant.
No. 16AP-471
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 13, 2016
2016-Ohio-8133
BROWN, J.
(C.P.C. No. 11CR-2014) (ACCELERATED CALENDAR)
D E C I S I O N
Rendered on December 13, 2016
On brief: Ron O‘Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.
On brief: Arnett C. Smotherman, pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Arnett C. Smotherman, from a judgment of the Franklin County Court of Common Pleas denying his motion to vacate an allegedly void judgment entered by the trial court in 2012 following appellant‘s entry of a guilty plea to possession of heroin.
{¶ 2} On April 18, 2011, appellant was indicted on one count of trafficking in heroin, in violation of
{¶ 3} On May 4, 2016, appellant filed a pro se motion to vacate the trial court‘s judgment entry of May 18, 2012 “due to violation of defendant‘s Fourteenth Amendment Constitutional right.” In the accompanying memorandum in support, appellant argued that the trial court failed to apprise him of his appellate rights at the time of the 2012 sentencing hearing, and that such failure rendered the court‘s judgment a “nullity or void.” On May 11, 2016, plaintiff-appellee, the State of Ohio, filed a memorandum contra the motion to vacate, arguing that the motion constituted an untimely petition for post-conviction relief. By decision and entry filed May 23, 2016, the trial court denied appellant‘s motion.
{¶ 4} On appeal, appellant sets forth the following assignment of error for this court‘s review:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT‘S MOTION TO VACATE HIS VOID SENTENCE/JUDGMENT AND TO RESENTENCE.
{¶ 5} Under his single assignment of error, appellant asserts the trial court erred in denying his motion to vacate the trial court‘s May 18, 2012 judgment of conviction and sentence. Appellant contends the trial court failed to inform him of his appellate rights at the 2012 sentencing hearing, as required by
{¶ 6} At the outset, we agree with the state‘s contention that appellant‘s motion to vacate the trial court‘s judgment of conviction and sentence is properly characterized as a petition for post-conviction relief. See State v. Bankston, 10th Dist. No. 13AP-250, 2013-Ohio-4346, ¶ 7 (construing appellant‘s motion for sentencing, filed four years after his sentence of conviction and direct appeal, as a petition for post-conviction relief where appellant asserted the trial court‘s failure to give notification of appellate rights under
{¶ 7}
{¶ 8} In Bankston at ¶ 8, this court discussed the requirements for an untimely petition for post-conviction relief, holding in part as follows:
R.C. 2953.23(A)(1) provides that a court may not entertain an untimely petition * * * unless certain conditions are met. * * * [B]before a court may consider an untimely * * * petition for postconviction relief, a petitioner must demonstrate that: ” ‘(1) he was unavoidably prevented from discovering the facts upon which he bases his petition, or that the petitioner‘s claim is based upon a newly-created federal or state right; and (2) clear and convincing evidence demonstrates that no reasonable factfinder would have found him guilty in the absence of the alleged constitutional error.’ ” * * * However, if a trial court receives an untimely * * * petition for postconviction relief that challenges a void sentence, it must ignore the procedural irregularities, vacate the void sentence, and resentence the offender.
{¶ 9} In the instant case, appellant entered his guilty plea on May 17, 2012, and the trial court entered a judgment of conviction and sentence on May 18, 2012. Appellant filed his motion to vacate on May 4, 2016, well beyond the statutory time limit.
{¶ 10} Appellant‘s pro se appellate brief does not specifically address the issue of timeliness. As noted above, however, he asserts that the 2012 judgment was void due to the trial court‘s failure to notify him of his appellate rights.
{¶ 12} To the extent appellant argues that the 2012 sentence was void (and thereby rendering inapplicable the statutory time limitation), we reject such argument. In general, “a sentence is void only if the trial court lacked subject-matter jurisdiction or the authority to act.” State v. Wurzelbacher, 1st Dist. No. C-130011, 2013-Ohio-4009, ¶ 8. The Supreme Court of Ohio has also in “recent years * * * ‘recognized a narrow, and imperative, exception to that general rule: a sentence that is not in accordance with statutorily mandated terms is void.’ ” Id., quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6328, ¶ 8.
{¶ 13} A trial court‘s failure to notify a defendant concerning appeal rights, however, does not render a sentence void. State v. Barnes, 12th Dist. No. CA2014-03-049, 2015-Ohio-651, ¶ 27 (while trial court failed to advise appellant of his right to appeal under
{¶ 14} Accordingly, we agree with the state‘s contention that appellant‘s petition for post-conviction relief is untimely. While not dispositive, we further note that appellant
{¶ 15} Based on the foregoing, the trial court did not err in denying appellant‘s motion to vacate the May 2012 judgment of conviction and sentence, and appellant‘s assignment of error is overruled. Having overruled appellant‘s single assignment of error, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DORRIAN, P.J., and TYACK, J., concur.