712 N.E.2d 1255 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *308 Defendant, Danny S. Wilkins III, appeals from an order that granted the state's motion for summary judgment on Wilkins's petition for postconviction relief.
Wilkins was indicted on one count of kidnapping, in violation of R.C.
On September 17, 1996, Wilkins filed a petition for postconviction relief pursuant to R.C.
The state moved for summary judgment, arguing inter alia that Wilkins's petition was defective because it did not contain affidavits demonstrating substantive grounds for relief, as R.C.
On November 5, 1996, before the court ruled on his motion for additional time, and without leave of court, Wilkins filed an amended petition for postconviction relief, which set up the same grounds for relief. Two affidavits were filed with the amended petition. In one, Wilkins stated, inter alia:
"4) I was never informed by my counsel or the court that by entering a plea of guilty to the one count of kidnapping, I would be waiving my right to be freed for a violation of my statutory speedy trial rights or to claim that my attorney ineffectively assisted me at the trial court level.
"5) I believed that the motion to release me for a violation of my speedy trial rights, filed by my attorney, would be successful. I was never told that by entering the plea that I did my right to contest that issue was waived."
The other affidavit filed with the amended petition was by attorney Arvin Miller of the Montgomery County Public Defender's Office, who opined that Wilkins's speedy trial rights had been violated and that his trial attorney was constitutionally ineffective for allowing Wilkins to plead guilty absent a determination of his motion for discharge.
The state moved to strike Wilkins's amended petition, arguing that it was not timely filed in relation to the filing deadline established in S.B. No. 2, September 21, 1996.
The trial court did not expressly rule on the state's motion to strike. Instead, the court granted the motion for summary judgment that the state had filed initially in response to Wilkins's first petition. The court found that Wilkins's speedy trial violation claim was barred as grounds for postconviction relief by the doctrine of res judicata. With respect to Wilkins's ineffective-assistance-of-counsel claim, the court found that it was not supported by the necessary affidavits and that Wilkins had failed to demonstrate prejudice. Implicitly, the court granted the state's motion to strike the amended petition.
Wilkins filed a timely notice of appeal from the summary judgment. He now presents a single assignment of error, which states:
*310"The trial court committed reversible error in granting summary judgment for the state of Ohio based on the fact that defendant failed to attach affidavits in support of his petition where in fact affidavits were filed in the trial court and ignored."
Wilkins's assignment of error is limited to his ineffective-assistance-of-counsel claim, which is not barred as grounds for postconviction relief by reason of Wilkins's failure to file a direct appeal from his conviction. State v.Cooperrider (1983),
R.C.
The petition that Wilkins filed on September 17, 1996 contained no affidavits or other evidentiary material demonstrating the ineffective assistance of counsel that Wilkins alleged in his petition. Therefore, the court was authorized to dismiss that petition without a hearing. Id.
Assuming, arguendo, that the two affidavits that were filed with Wilkins's amended petition contained evidence sufficient to require a hearing pursuant to R.C.
A proceeding on an R.C.
Civ.R. 15 (A) states, inter alia:
"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within twenty-eight days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party. Leave of court shall be freely given when justice so requires."
Civ.R. 15 (A) thus provides that a party may amend a pleading one time as a matter of right. Until a responsive pleading is filed, that right is absolute. Newton v. Jones (1984),
Civ.R. 7 distinguishes a pleading from a motion. "Under Civ.R. 7 (A), only complaints, answers and replies constitute pleadings." State ex rel. Hanson *311 v. Guernsey Cty. Commrs. (1992),
Civ.R. 56 (B) nevertheless permits a defendant to move for a summary judgment in his favor "at any time." "Thus, the motion may be served before a responsive pleading is filed." Klein Darling, Baldwin's Ohio Practice (1997) 554, Section 56-7. However, mere service of the motion does not operate to cut off a plaintiffs absolute right to amend pursuant to Civ.R. 15 (A).
R.C.
R.C.
For the reasons stated above, we hold that a motion for summary judgment that the state files is not a responsive pleading that cuts off a petitioner's right to amend his petition pursuant to Civ.R. 15 (A) and R.C.
The state argues that Wilkins was precluded from filing his amended petition after September 21, 1996, the last date on which his petition could be filed pursuant to the amendments to R.C.
We find that the trial court erred when it ignored the affidavits attached to Wilkins's amended complaint. Therefore, the assignment of error is sustained. The cause will be remanded to the trial court for further proceedings consistent with this opinion.
Judgment accordingly.
FREDERICK N. YOUNG, P.J., and WOLFF, J., concur.