State v. StewardState v. Steward
Rendered on May 12, 2011
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Michael A. Steward, pro se.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Defendant-appellant, Michael A. Steward, appeals from a judgment of the Franklin County Court of Common Pleas in which the trial court dismissed appellant‘s petition for post-conviction relief pursuant to
{¶2} Prior to addressing appellant‘s assignments of error, we note that the present appeal marks the third time this court has ruled on issues relating to appellant‘s convictions stemming from a robbery and murder committed on March 11, 1999. See State v. Steward (May 24, 2001), 10th Dist. No. 00AP-984 (“Steward I“), and State v. Steward, 10th Dist. No. 08AP-974, 2009-Ohio-2990 (“Steward II“). Due to the longevity of
{¶3} On May 26, 1999, appellant was indicted on three counts of aggravated murder, one count of aggravated robbery, and one count of aggravated burglary, each with a firearm specification. Steward I. On August 4, 2000, the trial court found appellant guilty of the lesser-included offense of involuntary manslaughter in violation of
{¶4} In Steward I, we overruled appellant‘s first and second assignments of error as to weight and sufficiency of the evidence, but sustained appellant‘s third assignment of error regarding the imposition of consecutive sentences without making the findings required by
{¶5} On October 29, 2001, the trial court held a resentencing hearing and orally reimposed appellant‘s original sentence of 18 years. Steward II at ¶5. Subsequent to the hearing, the trial court failed to file a formal resentencing entry. Id. On October 22, 2008, approximately seven years after the resentencing hearing, the trial court filed an entry journalizing the previously imposed oral sentence. Id. at ¶6.
{¶6} In Steward II, we overruled appellant‘s three assignments of error regarding (1) alleged violation of
{¶7} On June 21, 2010, appellant filed a petition for post-conviction relief. Therein, appellant admitted that the petition was untimely filed; however, he claimed that, pursuant to
{¶8} As evidence in support of his petition, appellant attached: (1) a letter to the clerk of courts requesting a copy of a judgment entry in Franklin County C.P. No. 92JU-06-6082, (2) a letter from Franklin County Court of Common Pleas dated March 12, 2010, stating that, due to the age of the case, recordings of hearings are no longer available, (3) several “name inquiry” sheets dated April 18, 2002, (4) a journal entry in case No. 95JU-02-1008, (5) a magistrate‘s decision in case No. 95JU-08-6757, and (6) a judgment entry in case No. 92JU-06-6082. (See Motion for Post-Conviction Relief.)
{¶9} On June 30, 2010, the state filed its answer and motion to dismiss, arguing that: (1) appellant‘s petition is untimely, pursuant to
{¶10} On August 16, 2010, the trial court denied appellant‘s petition for lack of jurisdiction because: (1) pursuant to
{¶11} On September 3, 2010, appellant filed a timely notice of appeal, setting forth two assignments of error for our consideration:
[1.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN DENYING APPELLANT‘S PETITION FOR POST-CONVICTION RELIEF UNDER [R.C.] 2953.23.
[2.] APPELLANT WAS DENIED DUE PROCESS TO A FAIR SENTENCING HEARING DUE TO THE MISCONDUCT OF THE PROSECTOR.
{¶12}
{¶13} In determining who is eligible to file a petition for post-conviction relief,
Any person who has been convicted of a criminal offense or adjudicated a delinquent child 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 * * * 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.
Further, in determining the time limitations for filing the petition,
Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication[.]
Finally, if a petition for post-conviction relief is untimely,
Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, 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 division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(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[.]
{¶14} We briefly note that
{¶15} In the present matter, appellant filed a petition for post-conviction relief pursuant to
{¶16} Appellant, however, argues that pursuant to the exception for filing an untimely petition stated in
{¶17} In Biddings at ¶9, this court addressed a similar fact pattern wherein the appellant conceded that he failed to meet the time requirement for filing his petition for post-conviction relief. In Biddings, the appellant also asserted that he “was unavoidably prevented from discovery of the facts upon which he must rely to present all of his claims for post-conviction relief,” claiming that “the prosecutor‘s office and the police would not provide him with any information or documentation pertaining to his criminal convictions.” Id. The state argued that, pursuant to
{¶18} This court held that the appellant “failed to satisfy the condition in
{¶19} Here, pursuant to
{¶20} Further, pursuant to
{¶21} Finally, we note that, in his petition, appellant referenced State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, and urged the court to order a new sentencing hearing “without the trial court imposing judicial factfindings.” Appellant makes this request in the context of his discussion regarding the second assignment of error: that appellant was denied due process to a fair sentencing hearing because of alleged prosecutorial misconduct. As such, appellant argues that the trial court erred at sentencing by taking into consideration information, supplied by the prosecutor, regarding appellant‘s juvenile record. Nevertheless, appellant, represented by counsel at the time, did not raise a Foster argument on direct appeal of his sentence, imposed pursuant to remand in Steward I. See generally Steward II.
{¶22} In State v. Thompkins, 10th Dist. No. 08AP-454, 2008-Ohio-5373, ¶12 (“Thompkins III“), we stated that “[u]nder the doctrine of res judicata, a defendant who was represented by counsel is barred from raising an issue in a petition for post-conviction relief if the defendant raised or could have raised the issue at trial or on direct appeal.” See State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337. See also ¶16 of
{¶23} Therefore, because appellant failed to establish the applicability of
{¶24} Accordingly, the trial court did not err in denying appellant‘s petition for post-conviction relief, although “technically the petitions should have been dismissed for lack of jurisdiction.” See Martin at ¶11. Therefore, our disposition of the jurisdictional issue renders both of appellant‘s assignments of error moot, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN and SADLER, JJ., concur.
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