State v. SteplerState v. Stepler
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
{¶ 1} Appellant, Henry L. Stepler, appeals the decision of the Summit County Court of Common Pleas, which denied his motion for post-conviction relief This Court affirms.
I.
{¶ 2} Appellant was convicted after jury trial of two counts of gross sexual imposition in violation of
{¶ 3} On June 19, 2006, appellant filed a pleading styled Motion To Vacate And/Or Correct Sentence. In that document, appellant argued that he was entitled to a new sentencing hearing based upon the Supreme Court of Ohio‘s holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Appellant further argued that the remedy he was allegedly entitled to pursuant to Foster was unconstitutional and that he was entitled to the imposition of concurrent, minimum sentences.
{¶ 4} The State responded on June 22, 2006, arguing that appellant‘s motion was an untimely motion for post-conviction relief, that appellant had no remedy because
{¶ 5} The trial court denied appellant‘s motion, finding that it was an untimely motion for post-conviction relief and that Foster did not apply to his case. Appellant timely appealed the trial court‘s decision, raising five assignments of error for review. Some assignments have been combined and rearranged to facilitate this Court‘s review.
II.
FIRST ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED BY DETERMINING THAT THE APPELLANT‘S MOTION `* * *’ IS A MOTION FOR POST CONVICTION RELIEF AS DEFINED IN
FIFTH ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED BY NOT GRANTING THE APPELLANT‘S MOTION.”
{¶ 6} In his first and fifth assignments of error, appellant contends that the trial court erred in denying his petition for post-conviction relief. This Court finds no merit in appellant‘s contentions.
{¶ 7} This Court reviews a trial court‘s grant or denial of 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.
{¶ 8} Appellant did not file a direct appeal after his re-sentencing. However, because he asserted constitutional violations in his motion, which was filed subsequent to the deadline for filing a direct appeal, this Court construes the motion as a petition for post-conviction relief as provided in
{¶ 9} Accordingly, appellant was required to comply with
{¶ 10} Appellant‘s motion was filed on June 19, 2006 — five months after the expiration of the time to file a motion for post-conviction relief — 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 claim based on that right.“(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.”
{¶ 11} As noted below in response to appellant‘s second and fourth assignments of error, Foster does not apply retroactively. Thus, appellant has failed to show that the circumstances listed in
{¶ 12} Appellant‘s case is before us on appeal from a denial of his petition for post-conviction relief, not from direct appeal. As such, appellant has failed to meet his burden under
SECOND ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DETERMINING THAT `THE HOLDING OF STATE V. FOSTER, * * * ONLY APPLIES TO CASES PENDING ON DIRECT REVIEW.’ CITING STATE V. FOSTER (2006), 109 OHIO ST.3d 1, 31 .”
FOURTH ASSIGNMENT OF ERROR
“THE TRIAL COURT MADE UNCONSTITUTIONAL FINDINGS WHEN SENTENCING THE APPELLANT IN VIOLATION OF THE APPELLANT‘S SIXTH AMENDMENT RIGHTS TO JURY DETERMINATION OF ANY FACTS USED TO IMPOSE MORE THAN THE MINIMUM OR TO IMPOSE CONSECUTIVE SENTENCES.”
{¶ 13} In his second assignment of error, appellant contends that State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, is applicable to his case; and in his fourth assignment of error, appellant argues that the trial court engaged in unconstitutional fact finding in determining his sentence. This Court disagrees.
{¶ 14} In Foster, the Supreme Court of Ohio found that
{¶ 15} 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 retroactive application of its holding to cases on direct review. Appellant‘s case is before us on appeal from a denial of his petition for post-conviction relief, not from direct appeal. As such, appellant has failed to meet his burden under
THIRD ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED BY DENYING THE APPELLANT‘S MOTION WITHOUT AN EVIDENTIARY HEARING.”
{¶ 16} In his third assignment of error, appellant argues 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.
{¶ 17} Appellant‘s assignments of error are overruled. The decision of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute 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.
Costs taxed to appellant.
BOYLE, J. BAIRD, J. CONCUR
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Ar