State v. Wilson , 2014 Ohio 5808 ( 2014 )

[Cite as State v. Wilson, 2014-Ohio-5808.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25811
Plaintiff-Appellee :
: Trial Court Case No. 07-CR-2134/2
v. :
:
ANTHONY L. WILSON : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 30th day of December, 2014.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorneys for Plaintiff-Appellee
ANTHONY L. WILSON, 1404 Willow Drive, Dayton, Ohio 45426
Defendant-Appellant
.............
2
FAIN, J.
{¶ 1} Defendant-appellant Anthony L. Wilson appeals from the June 25, 2013 order
of the trial court denying his petition for post-conviction relief upon the ground that it was not
timely filed. Although Wilson asserts certain facts in this court that might have justified his
untimely filing, these facts were not asserted in the trial court as a basis for the untimely filing
of his petition. Therefore, the trial court did not abuse its discretion in finding the petition
untimely filed, and its order denying the petition is Affirmed.
I. The Course of Proceedings
{¶ 2} As set forth in State v. Wilson, 2d Dist. Montgomery No. 25279,
2013-Ohio-2753 (Wilson III), ¶ 4-10:
In 2007, Wilson was charged with two counts of Complicity to Commit
Felonious Assault, with firearm specifications. A co-defendant, Timmesha R.
Mason, was charged with two counts of Felonious Assault, with firearm
specifications. Counts 1 and 2 of the indictment pertained to Mason; Counts 3
and 4 pertained to Wilson.
Wilson was convicted in a jury trial of both counts and specifications.
The two counts of Complicity to Commit Felonious Assault were merged, as
were the two firearm specifications. Wilson was sentenced to four years for
Complicity to Commit Felonious Assault, and to three years for the firearm
specification, to be served prior to, and consecutively to, the four-year sentence,
for a total sentence of seven years.
3
Wilson appealed. We affirmed. State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009–Ohio–525. ( Wilson I ).
In March 2010, Wilson moved for leave to file an untimely motion for a new trial, based
on newly discovered evidence. The trial court overruled the motion, and Wilson appealed. In
December 2010, Wilson moved for a stay of the collection of court costs until after his release
from prison. This motion was overruled, and Wilson appealed. On February 23, 2011, Wilson
was brought before the trial court for resentencing to correct an error in the imposition of
post-release control, pursuant to R.C. 2929.191. He objected to the limited scope of this hearing,
and requested a de novo re-sentencing hearing. His objection was overruled, and the trial court,
on the same date, entered an amended judgment of conviction imposing a term of post-release
control, and specifying that the manner of the conviction was as the result of a jury verdict.
Wilson appealed.
All three of these appeals were consolidated. We concluded that all three appeals were
without merit, and affirmed. State v. Wilson, 2d Dist. Montgomery Nos. 24461, 24496, and
24501, 2012–Ohio–1660. (Wilson II ).
In May 2012, Wilson filed a motion for re-sentencing, contending that: (1) the original
judgment entry of conviction was void, because it was not signed by the trial judge, but was
rubber-stamped; (2) because the 2007 judgment entry reflected that Wilson had been convicted
on Counts 1 and 2 of the indictment, which did not pertain to him, the charges in Counts 3 and 4,
which did pertain to him, remained unadjudicated; and (3) the 2011 judgment entry, not being a
proper nunc pro tunc entry, was void. The trial court overruled Wilson's motion by an entry filed
June 18, 2012.
4
Thereafter, Wilson filed a “Motion for Written Objection Pursuant Evid.R. 103(A)(1) to
the Decision Rendered on June 18, 2012 Pertaining to the Re-sentencing Motion to Correct a
Void Sentence.” The trial court overruled this motion.
{¶ 3} Wilson appealed. We affirmed. Wilson III.
{¶ 4} On March 1, 2013, Wilson filed the Petition for Post-Conviction Relief that is the subject of this
appeal. On June 25, 2013, the trial court denied the petition as untimely. Wilson appeals. He sets forth two
assignments of error:
THE TRIAL COURT ERRED BY ENTERING A NUNC PRO TUNC ENTRY
MODIFYING THE ORIGINAL JUDGMENT TO SHOW WHAT THE COURT ACTUALLY
DID DECIDED [sic], BUT INSTEAD DISPLAYED WHAT THE COURT THOUGHT IT
MIGHT OR SHOULD HAVE DECIDED.
THE TRIAL COURT DECISION TO DENY THE SUCCESSIVE POST CONVICTION
[sic] WAS AN ABUSE OF DISCRETION WHEN PETITIONER SHOWED DUE DILIGENCE
FOR THE DELAY BY PROCURING CERTAIN DOCUMENTS THAT WAS [sic] NOT
WITHIN HIS POSSESSION UNTIL STATE AGENCIES HAD PETITIONER’S PRIOR
ATTORNEYS RELINQUISH THE DOCUMENTS FROM THEIR CUSTODY, REQUIRING
THE TRIAL COURT TO CONDUCT AN EVIDENTIARY HEARING TO DISPUTE THE
CONTENTS AND THE VALIDITY OF THE DOCUMENTS AND THE TIME PERIODS
THAT THEY WERE ACTUAL [sic] RECEIVED IN THE POSSESSION OF PETITIONER
RESULTED IN THE TRIAL COURT VIOLATING PETITIONER’S CONSTITUTIONAL
RIGHTS AFFORDED UNDER V, VI, VIII AND XIV AMENDMENTS; OHIO
CONSTITUTION ARTICLE I §§ 1, 2, 5, 9, 10, 16, 20.
5
II. The Trial Court Did Not Enter a Void Judgment in its February 23, 2011 Entry
{¶ 5} In connection with his First Assignment of Error, Wilson contends that the
re-sentencing entry of February 23, 2011 (to correct a post-release control error) was a void
judgment, because it was not a proper nunc pro tunc entry. The essence of his argument seems
to be that the trial court , in this entry, refers to his conviction as being for complicity, whereas he
was actually convicted as being the principal offender. He cites State v. Bumgardner, 2d Dist.
Greene No. 99 CA 75, 1999 WL 1082634 (Dec. 3, 1999), for the proposition that this rendered
the February 23, 2011 entry void.
{¶ 6} In Bumgardner, we reversed a purported nunc pro tunc entry eliminating an
award of court costs. At *2, we said:
The trial court did not address the issue of costs when it sentenced
Bumgardner in open court, but the court subsequently filed a termination entry
drafted by the state which specified that Bumgardner was to be assessed the costs
of the proceedings. If this were the only evidence in the record bearing on the trial
court's original decision as to costs, we would be inclined to agree with
Bumgardner that we could not second guess whether the trial court had imposed
those costs inadvertently or intentionally, and we would presume that the trial
court had properly used the nunc pro tunc entry to memorialize what its decision
as to costs had been at the time of sentencing.
In this case, however, we have the benefit of the trial court's language in
overruling the state's motion for reconsideration of the nunc pro tunc entry.
6
{¶ 7} We concluded that it was clear from the trial court’s entry overruling the State’s
motion for reconsideration that the trial court had changed its mind about awarding costs; that the
trial court was not simply amending the judgment entry to reflect what it had actually originally
decided about awarding costs. By contrast, there is nothing in the case before us to persuade us
that the February 23, 2011 entry was intended to do anything other than to reflect the judgment
that the trial court had actually originally intended to render.
{¶ 8} Furthermore, we are not persuaded that a trial court’s erroneous use of a nunc pro
tunc entry renders that entry not merely voidable, but void. Bumgardner involved a direct
appeal from the nunc pro tunc entry, not a collateral attack. To be sure, the final sentence in the
antepenultimate paragraph of that opinion declares the entry “void,” but that is consistent with
our having reversed the entry, due to the erroneous use of nunc pro tunc.
{¶ 9} Finally, we do not find the difference between a conviction and sentence for
complicity to commit an offense, versus a conviction and sentence for the commission of that
same offense as a principal, to be so vast as Wilson seems to think. “Whoever violates this
section is guilty of complicity in the commission of an offense, and shall be prosecuted and
punished as if he were a principal offender. A charge of complicity may be stated in terms of
this section, or in terms of the principal offense.” R.C. 2923.03(F). The italicized portion of
the statute persuades us that whether one commits an offense as the actor committing the acts
constituting the elements of the offense, or whether one is an aider and abettor, one has still
committed the offense, so that the distinction that Wilson contends rendered the February 23,
2011 entry void is actually immaterial.
7
III. The Trial Court Did Not Abuse its Discretion in
Finding Wilson’s Petition to have Been Untimely
{¶ 10} Wilson’s petition was not filed within the time prescribed by R.C. 2953.21(A)(2).
The trial court found it to be untimely:
The court finds that Defendant’s Petition is untimely. The Petition was
filed long after the expiration of the statutory time within which a timely petition
was required. Additionally, Defendant has failed to show that he was
unavoidably prevented from discovery of the facts upon which the petitioner relies
to present his claims for relief.
{¶ 11} In his petition, Wilson addressed the timeliness issue as follows:
The United States Supreme Court has recognized additional guidelines for
ineffective assistance of counsel standards during plea negotiations, and sound
advise [sic] from counsel to either proceed to trial or take a plea deal. At the time
of Petitioner’s previous litigations there was no such guidelines enacted regarding
this ineffective assistance of counsel standard during plea negotiations. If there
was then Petitioner would have a sound claim for relief based on the Missouri v.
Frye, [132 S.Ct. 1399, 182 L.Ed.2d 379, 80 USLW 4253 (2012)] 2012 U.S.
LEXIS 2321 and Lafler v. Cooper, [132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW
4244 (2012)] 2012 U.S. LEXIS 2322 criterion in his first post-conviction petition.
Petitioner has acted diligently to become in contact with the affidavits attached hereto.
By going through relatives, disciplinary complaints, and witnesses who mailed the information in
by regular U.S. Mail. This extreme process prevented Petitioner from having the affidavits in
8
his possession in earlier stages of the original post-conviction petition.
{¶ 12} With respect to Wilson’s first argument, based upon the provision in R.C. 2953.23(A)(1)(a)
relating to the United States Supreme Court recognizing a new federal or state right that applies retroactively to
persons in the petitioner’s position, the trial court concluded: “ * * * those decisions by the U.S. Supreme Court
do not declare a new right of Defendants, but instead clarify the extent of the Sixth Amendment right to counsel,
and the parameters of the duties of counsel to be effective.” We agree with the trial court.
{¶ 13} With respect to Wilson’s other argument that despite his diligence, he was prevented from
having the affidavits upon which he relied, the trial court found that: “he has failed to present any evidence that
he was unavoidably prevented from discovering the facts upon which he relies to present his claim for relief
* * * .” Given the vagueness and generality of Wilson’s allegations in this regard, which, as the trial court
notes, do not contradict the proposition that Wilson was aware of the evidence upon which he relied years before
his March 1, 2013 petition, we find no abuse of discretion in the trial court’s finding of untimeliness.
{¶ 14} In his appellate brief, Wilson lays out certain specific factual allegations, including that the
Montgomery County Jail lost or destroyed documents upon which he intended to rely and that his Columbus
counsel neglected to bring copies of the documents to the hearing. None of these allegations was presented to
the trial court, and they therefore cannot be used to predicate error in the trial court’s ruling of untimeliness.
{¶ 15} Because we conclude that the trial court did not abuse its discretion when it
found Wilson’s March 1, 2013 petition for post-conviction relief to be untimely, Wilson’s
assignments of error are overruled.
IV. Conclusion
9
{¶ 16} Both of Wilson’s assignments of error having been overruled, the June 25, 2013
order overruling his petition for post-conviction relief is Affirmed.
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HALL and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Anthony L. Wilson
Hon. Mary K. Huffman