State v. VillaState v. Villa
Dated: September 28, 2009
Per Curiam.
INTRODUCTION
{¶1} A jury convicted Mr. Villa of aggravated murder, and the trial court sentenced him to twenty-three years in prison. Mr. Villa appealed, but this court affirmed his conviction. The docket for his direct appeal indicates that the Transcript of Proceedings was filed on January 6, 2006, and the notice of filing the record was filed on January 12, 2006.
{¶2} On July 10, 2006, Mr. Villa filed a petition for post-conviction relief. The trial court dismissed it as untimely under
{¶3} Mr. Villa’s assignment of error is that the trial court incorrectly calculated the 180-day limitations period from the date the transcript was filed in the trial court instead of the date it was filed in this Court. Although the transcript of proceedings was also filed in this Court on the same date as in the trial court, Mr. Villa instead argues that the transcript of proceedings was not actually filed in this Court until the entire record on appeal was filed in this Court and the clerk of the appellate court filed the notice of the filing of the record, pursuant to
{¶4}
{¶5} Mr. Villa focuses his argument on one key question – can the transcript of proceedings be filed before the record is filed? He points to
{¶7} The limitations period language in the statute may cause confusion in some cases, but not this one. Here, the docket reflects the date of the filing of the transcript of proceedings in the court of appeals, January 6, 2006. That filing triggered the 180 day period for Mr. Villa to file his petition. Mr. Villa relied on a different date and filed his petition too late.
{¶8} To learn the triggering date to calculate his petition’s due date, Mr. Villa had several options available to him, including asking the attorney who represented him on direct appeal, contacting the clerk of courts, or reviewing the clerk of court’s on-line docket, a copy of which was attached to his brief in this case. “What he could not do was ignore the [statute’s] filing deadline.” State v. LaMar, 102 Ohio St.3d 467, 2004-Ohio-3976, at ¶7.
{¶9} Accordingly, because Mr. Villa did not file his petition for post-conviction relief until 185 days after the trial transcript was filed in this Court, the trial court correctly dismissed it as untimely. His assignment of error is overruled.
{¶10} The trial court correctly concluded that Mr. Villa’s petition for post-conviction relief was untimely under
Judgment affirmed.
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 Lorain, 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.
CARLA MOORE
FOR THE COURT
CARR, J.
MOORE, P. J.
CONCUR
DISSENTS, SAYING:
{¶11} The majority has noted that the transcript of proceedings was filed in Mr. Villa’s direct appeal “on January 6, 2006, and the notice of filing the record was filed on January 12, 2006.” What it has failed to mention is that what it has called “the notice of filing the record” is labeled “Transcript” on the docket sheet and is described as the “Transcript of Docket & Journal Entries Together with all Original Papers Filed and Received . . . .” The clerk’s office sent Mr. Villa a notice, informing him “that the record has been filed in the Court of Appeals . . . on January 12, 2006. The record consists of a transcript of docket and journal entries together with all original papers from [his criminal case].” The clerk did not send Mr. Villa a notice telling him when the transcript of proceedings was filed.
{¶12}
{¶13} The majority has suggested that Mr. Villa could have learned the triggering date for his petition from the lawyer who represented him on direct appeal. That lawyer, however, was appointed to assit Mr. Villa with his direct appeal, not offer advice about his other remedies. The majority also has suggested that Mr. Villa could have contacted the clerk’s office for the triggering date, but it is not authorized to give parties legal advice. Furthermore, while Mr. Villa
{¶14} Upholding the dismissal of Mr. Villa’s petition as untimely denies him the right to due process. See State v. Hollingsworth, 118 Ohio St. 3d 1204, 2008-Ohio-1967, at ¶4 (Moyer, C.J., concurring). “[D]ue-process rights are malleable ones that are designed to ensure that individuals are treated with fundamental fairness in light of the given situation and the interests at stake.” State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, at ¶35 (citing In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, at ¶ 80-81). Mr. Villa petitioned for post-conviction relief 179 days after the docket sheet in his direct appeal and the notice he received from the court said the transcript had been filed. To conclude that his petition is late under such circumstances violates fundamental fairness.
APPEARANCES:
ANTHONY VILLA, JR., pro se, appellant.
DENNIS WILL, prosecuting attorney, and MARY R. SLANCZKA, assistant prosecuting attorney, for appellee.