State v. Esway, Unpublished Decision (2-1-1999) ( 1999 )

On June 8, 1992, the Stark County Grand Jury indicted appellant, Vincent M. Esway, on one count of aggravated murder with a firearm specification in violation of R.C. 2903.01(A) and R.C. 2941.141.

A jury trial commenced on August 17, 1992. The jury found appellant guilty as charged. By judgment entry filed August 27, 1992, the trial court sentenced appellant to a determinate term of three years for the firearm specification followed by a term of life imprisonment with parole eligibility after twenty years. Appellant's conviction and sentence were affirmed on appeal. See, State v. Esway (September 20, 1993), Stark App. Nos. CA-9118 and CA-9190, unreported.

On August 10, 1998, appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21. By judgment entry filed September 3, 1998, the trial court denied said petition finding the petition was untimely filed.

Appellant filed a pro se notice of appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

THE TRIAL COURT ERRED IN DISMISSING THE POST-CONVICTION PETITION AS BEING UNTIMELY AND WITHOUT HOLDING AN EVIDENTIARY HEARING, AS WELL AS FOR FAILING TO MAKE AND FILE PROPER FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO THE DISMISSAL AS REQUIRED BY LAW.

II

APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL BY COUNSEL'S ACTS AND OMISSIONS BEFORE, DURING AND AFTER THE TRIAL IN THIS CASE

or within one year from the effective date of this act, whichever is later.

Appellant was convicted on August 27, 1992. Appellant had until September 21, 1996 to file his petition for post-conviction relief. It is undisputed that appellant filed his petition on August 10, 1998, beyond the permitted extension date.

Based upon the clear meaning of Section 3 and the Ohio General Assembly's provision for a grace period, we find the trial court did not err in finding appellant's petition for post-conviction relief was untimely filed.

Assignment of Error I is denied.

II, III, IV Based upon our decision in Assignment of Error I, these assignments are moot.

The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.

By Farmer, J., Wise, J. and Reader, J. concur.

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For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed.

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Hon. John W. Wise, P.J., Hon. W. Don Reader, J., Hon. Sheila G. Farmer, J., JUDGES.