State v. Staats, 2007-Ca-00053 (7-16-2007)State v. Staats, 2007-Ca-00053 (7-16-2007)
{¶ 1} Defendant-appellant Gary Cyril Staats appeals the February 13, 2007 judgment entry of the Stark County Court of Common Pleas dismissing his motion for correction or modification of sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶ 2} On or about September 9, 2004 appellant was charged by indictment with two counts of breaking and entering in violation of
{¶ 3} On January 5, 2005 Appellant entered pleas of guilty to each of the charges contained in the indictment. Appellant, who was represented by counsel, signed a Change of Plea form.
{¶ 4} By Judgment Entry filed February 14, 2005 the trial court sentenced appellant to four years of community control sanctions with conditions.
{¶ 5} By Judgment Entry filed June 16, 2005 appellant‘s community control was revoked and the trial court sentenced appellant to a term of eleven months on each charge contained in the indictment. The trial court further ordered each sentence to run consecutively, for an aggregate sentence of forty-four (44) months.
{¶ 6} On September 9, 2005 appellant filed a motion for judicial release which the trial court denied by Judgment Entry filed September 12, 2005.
{¶ 7} On January 19, 2006 appellant filed a motion to withdraw his pleas of guilty in the trial court upon the grounds that he received ineffective assistance of
{¶ 8} On February 2, 2006 appellant again filed a motion for judicial release in the trial court. That motion was denied by Judgment Entry filed February 6, 2006.
{¶ 9} On July 20, 2006 appellant filed his third motion for judicial release in the trial court. That motion was denied by Judgment Entry filed July 24, 2006.
{¶ 10} On August 17, 2006 appellant filed a motion for delayed appeal with this Court. This Court denied said motion by Judgment Entry filed September 12, 2006.
{¶ 11} On February 7, 2007 appellant filed a motion to correct or vacate his sentence in the trial court. Appellant contended that vandalism is a lesser included offense of breaking and entering. Appellant argued that the breaking and entering counts should have been merged with the vandalism counts for purposes of sentencing. The trial court overruled appellant‘s motion by Judgment Entry filed February 13, 2007.
{¶ 12} It is from the trial court‘s Judgment Entry overruling his motion to correct or vacate sentence that appellant has appealed raising the following assignments of error:
{¶ 13} “I. WHETHER THE TRIAL COURT ERRED WHEN DENYING RELIEF ON FEBRUARY 13, 2007, WITHOUT RULING ON THE MERITS OF THE CLAIM, WHEREIN APPELLANT PRESENTED A CLAIM OF PLAIN ERROR WHICH RESULTED IN THE IMPOSITION OF A CLEARLY ILLEGAL AND/OR UNLAWFUL SENTENCE?
{¶ 14} “II. WHETHER APPELLANT‘S CONVICTIONS FOR BREAKING ENTERING; [SIC] AND VANDALISM CONSTITUTES CONVICTIONS FOR CRIMES
I.
{¶ 15} Appellant, in his first assignment of error, challenges the denial of his Motion to Correct and/or to Vacate Incorrect Sentence.
{¶ 16} We begin our analysis by noting a reviewing court is not authorized to reverse a correct judgment merely because it was reached for the wrong reason. State v. Lozier (2004), 101 Ohio St.3d 161, 166, 2004-Ohio-732 at ¶ 46, 803 N.E.2d 770, 775. [Citing State ex rel. McGinty v. Cleveland City School Dist. Bd. of Edn. (1998), 81 Ohio St.3d 283, 290, 690 N.E.2d 1273]; Helvering v. Gowranus (1937), 302 U.S. 238, 245, 58 S.Ct. 154, 158.
{¶ 17} Post conviction efforts to vacate a criminal conviction or sentence on constitutional grounds are governed by
{¶ 18} “Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, and any person who has been convicted of a criminal offense that is a felony, who is an inmate, * * * may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.”
{¶ 19} The caption of a pro se pleading does not definitively define the nature of the pleading. State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304. In Reynolds, the
{¶ 20} Pursuant to
{¶ 21} The record indicates appellant did not file a direct appeal in this matter with a transcript. Therefore, under
{¶ 22} Appellant was convicted on February 14, 2005. However, appellant did not file his petition for post-conviction relief until February 7, 2007, which is well beyond the time period provided for in the statute. Because appellant‘s petition was untimely filed, the trial court was required to entertain appellant‘s petition only if he could meet the requirements of
{¶ 23} * * * [A] court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless both of the following apply:
{¶ 24} “(1) Either of the following applies:
{¶ 25} “(a) 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.
{¶ 26} “(b) Subsequent to the period prescribed in division (A)(2) of section
{¶ 27} “(2) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable fact finder 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 fact finder would have found the petitioner eligible for the death sentence.”
{¶ 28} In his petition, appellant did not provide a basis under
{¶ 29} The trial court‘s Judgment Entry of Sentencing filed February 14, 2005 contains the following caveat: “Violation of any condition of this sentence shall lead to a more restrictive sanction, a longer sanction, or a prison term of forty-four (44) months, eleven months on each to be served consecutively“. Id. at 6. Accordingly, appellant was on notice that the trial court did not consider the crimes allied offenses of similar
{¶ 30} As such, appellant has failed to meet his burden under
{¶ 31} We find that the trial court‘s denial is proper because the court was not statutorily authorized to entertain the petition because of its untimeliness. Id.
{¶ 32} Accordingly, appellant‘s first assignment of error is overruled.
II.
{¶ 33} In his second assignment of error appellant argues that the crimes of breaking and entering and vandalism are allied offenses of similar import thereby precluding imposition of consecutive sentences.
{¶ 34} This Court cannot address the merits of appellant‘s arguments as we find this Court does not have jurisdiction to hear this assignment of error. Appellant contends that he is appealing from the trial court‘s denial of his motion to correct or vacate his sentence. However, the errors alleged in appellant‘s second assignment of error arise from the trial court‘s February 14, 2005 Judgment Entry of Sentence. In that Judgment Entry, the trial court advised the appellant of the potential sentences for a violation of community control sanctions and noted that the sentences were to be run consecutively. Appellant did not object, nor argue to the trial court that the sentences
{¶ 35} A party shall file the notice of appeal required by
{¶ 36} For the foregoing reasons, the judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed.
Gwin, P.J., Edwards, J., and Delaney, J., concur
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed. Costs to appellant.