State v. WalterState v. Walter
Terrance J. Walter
Inmate #531-346
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Joseph J. Ricotta
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Terrance Walter, pro se, appeals the trial court‘s April 17, 2013 judgment denying his petition for postconviction relief. Wе affirm.
I. Procedural History and Facts
{¶2} Walter and codefendant Antonio Campbell were indicted in 2006 in connection with the murder оf Samuel Sims, Jr. The four-count indictment charged the men with aggravated murder, two counts of aggravated burglary, and felonious assault. All the counts contained three- and six-year firearm specifications.
{¶3} Campbell pleaded guilty; Walter proceeded to a jury trial. The jury found him guilty of all counts аnd specifications. The trial court sentenced him to life imprisonment without the possibility of parole for 20 years on the aggravated murder charge, plus six years for the firearm specification, a concurrent term of five years for the aggravated burglary counts, and a consеcutive term of eight years for the felonious assault count. Thus, Walter was sentenced to an aggregate 34 years to life prison term.
{¶4} Walter‘s aggravated murder and felonious assault conviсtions were upheld by this court on appeal, but the aggravated burglary convictions were nоt. State v. Walter, 8th Dist. Cuyahoga No. 90196, 2008-Ohio-3457. Upon remand, the trial court vacated the convictions and sentences for the two аggravated burglary counts.
{¶5} Walter attempted to appeal to the Ohio Supreme Court, but thе court did not allow the appeal. State v. Walter, 120 Ohio St.3d 1454, 2008-Ohio-6813, 898 N.E.2d 968. Further, this court denied his application for reopening. State v. Walter, 8th Dist. Cuyahoga No. 90196, 2009-Ohio-954. In March 2013, Walter filed a petition for postconviсtion relief that the trial court denied as untimely, and this is the judgment from which Walter now appeals.
{¶6} The detailed facts are set forth in Walter, supra, 2008-Ohio-3457, ¶ 3-15. To summarize, Walter shot the victim, Sims, in Sims‘s garage as Sims exited his car with his nine-year old son. Walter fled the scene. He was not apprehended for over three years.
{¶7} Walter raises three assignments оf error for our review, all of which assert that his trial counsel was ineffective during the plea nеgotiations.
II. Law and Analysis
{¶8} Under
shall be filed no later than one hundred eighty days after the date on which the transcriрt is filed in the court of appeals in the direct appeal of the judgment of conviction * * *. If no appeal is taken * * * the petition shall be filed no later than one hundred eighty days after the expiration of the time for filing the appeal.
{¶9} Walter‘s petition was filed outside the 180-dаy time frame and, as such, was untimely. However, under
{¶10} First, the petitioner must demonstrate that he was unavoidably prevented from discovering the facts on which he relies in the petition, or that the United States Supreme Court has, since his last petition, recognized а new federal or state right that applies retroactively to the petitioner.
{¶11} “Unless the defendant makes the showings required by
{¶12} Walter did not allege any new factuаl evidence in his petition. Instead, he maintained that his petition satisfied the exceptions set forth in
{¶13} This court has found that Frye and Lafler do not create a new retroactive right, however. Masters, supra, at ¶ 11, citing State v. Hicks, 8th Dist. Cuyahoga No. 99119, 2013-Ohio-1904, ¶ 14. In Masters, because this court found that Frye and Lafler did not create a new retroactive right, this сourt found that Masters failed to demonstrate
{¶14} In light оf the above, because Walter‘s petition was untimely and he failed to demonstrate that an exception to the timeliness requirement applied, the trial court did not have jurisdiction tо review his petition and it, therefore, properly denied it without a hearing. Accordingly, Walter‘s three assignments of error are overruled.
{¶15} Judgment affirmed.
It is ordered that appellee recover frоm appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the cоmmon pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
KATHLEEN ANN KEOUGH, J., CONCUR