State v. Butler , 2012 Ohio 5361 ( 2012 )

[Cite as State v. Butler, 2012-Ohio-5361.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
)
V. ) CASE NO. 11-JE-30
)
RAPHAEL BUTLER, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Jefferson County, Ohio
Case No. 01CR82
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee No brief filed
For Defendant-Appellant Raphael Butler
#421-823
Noble Correctional Institution
15708 McConnelsville Rd.
Caldwell, Ohio 43724
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Dated: November 16, 2012
[Cite as State v. Butler, 2012-Ohio-5361.]
DONOFRIO, J.
{¶1} Defendant-appellant, Raphael Butler, appeals from a Jefferson County
Common Pleas Court judgment overruling his “motion to correct an illegal sentence.”
{¶2} This is appellant’s fifth appeal in this case. Appellant was convicted in
2001, of burglary and two counts of aggravated robbery, with accompanying firearm
specifications. The trial court sentenced appellant to eight years for burglary. The
court merged the two armed robbery counts into concurrent four year terms, but
ordered appellant to serve that term consecutively to the burglary sentence. It also
merged the three firearm specifications into one, for which it imposed an additional
consecutive term of three years. Appellant’s total prison sentence was 15 years.
This court affirmed his convictions and sentence in his direct appeal. State v. Butler,
7th Dist. No. 01-JE-34, 2003-Ohio-3468.
{¶3} Appellant later filed a motion for resentencing in the trial court alleging
that his sentence was inappropriate pursuant to the holding in State v. Foster, 109
Ohio St. 3d 1, 2006-Ohio-856. The trial court conducted a resentencing hearing that
resulted in the court's re-imposition of appellant’s sentence. On appeal, we found
that appellant’s motion for resentencing was actually an untimely petition for
postconviction relief. State v. Butler, 7th Dist. No. 06-JE-37, 2007-Ohio-2193.
Because appellant’s motion was untimely, we found that the trial court was without
jurisdiction to consider it. Id. Therefore, we vacated the trial court’s judgment and
reinstated the original sentence, which was the same sentence. Id.
{¶4} Next, appellant filed a second petition for postconviction relief in which
he alleged that his indictment for aggravated robbery was defective. The trial court
overruled appellant’s petition. On appeal, we found that appellant did not satisfy any
requirement for filing a late or successive petition for postconviction relief. State v.
Butler, 7th Dist. No. 09-JE-1, 2010-Ohio-2537. Therefore, we determined that the
trial court properly overruled the petition and affirmed its judgment. Id.
{¶5} Appellant subsequently filed a motion to correct an improper sentence
where he alleged that the trial court failed to properly inform him of postrelease
control. The trial court denied the motion on the basis that appellant had been
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expressly notified about postrelease control at his resentencing hearing in June
2006. On appeal, we found that appellant’s sentencing judgment entry did not
contain the necessary notice of postrelease control. State v. Butler, 7th Dist. No. 10-
JE-14, 2011-Ohio-6366. Therefore, we remanded the matter to the trial court for the
sole purpose of adding the postrelease control notification language. Id.
{¶6} Appellant next filed a “motion to correct an illegal sentence” arguing that
the trial court should have merged his convictions and sentences for burglary and
aggravated robbery because they are allied offenses of similar import.
{¶7} The trial court overruled appellant’s motion. It stated that appellant’s
claims lacked merit and were moot.
{¶8} Appellant filed a timely notice of appeal on November 14, 2011.
{¶9} Plaintiff-appellee, the State of Ohio, has failed to file a brief in this
matter. Therefore, we may consider appellant's statement of the facts and issues as
correct and reverse the judgment if appellant's brief reasonably appears to sustain
that action. App.R. 18(C).
{¶10} Appellant raises three assignments of error. Appellant’s assignments of
error are very similar and make the same basic argument. Therefore, we will
address them together. The assignments of error state:
THE TRIAL COURT ERRED WHEN IT DENIED THE
DEFENDANT’S MOTION TO CORRECT AN UNLAWFUL SENTENCE.
THE TRIAL COURT ERRED WHEN IT COMMITTED PLAIN
ERROR BY FAILING TO IMPOSE CONCURRENT SENTENCES FOR
MULTIPLE CONVICTIONS FOR ALLIED OFFENSES OF SIMILAR
IMPORT PURSUANT TO R.C. 2941.25.
THE TRIAL COURT ERRED BY COMMITTING PLAIN ERROR
WHEN IT FAILED TO COMPLY WITH CRIM.R. 32(C) AND
PROPERLY SENTENCING [sic.] THE APPELLANT IN ACCORDANCE
WITH R.C. 2941.25(A).
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{¶11} Appellant argues that his sentence does not comply with R.C. 2941.25.
R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant
may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or with
a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶12} Appellant contends that the trial court should have merged his
convictions and sentences for burglary and aggravated robbery. He concludes that
this alleged failure to comply with R.C. 2941.25 was plain error, renders his sentence
unlawful, and requires a re-sentencing hearing.
{¶13} We cannot reach the merits of appellant’s argument, however, because
his postconviction motion was untimely.
{¶14} The requirement that a petition for postconviction relief be filed timely is
jurisdictional. R.C. 2953.23(A) (“a court may not entertain a petition filed after the
expiration of the period prescribed [in R.C. 2953.21]”). Unless the petition is filed
timely, the court is not permitted to consider the substantive merits of the petition.
State v. Beaver, 131 Ohio App. 3d 458, 461, 722 N.E.2d 1046 (11th Dist.1998) (the
trial court should have summarily dismissed appellant's untimely petition without
addressing the merits).
{¶15} If a postconviction relief petition is filed beyond the 180-day time
limitation or the petition is a second or successive petition for postconviction relief,
R.C. 2953.23(A) precludes the court from entertaining the petition unless: (1) the
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petitioner shows that he was unavoidably prevented from discovering the facts upon
which his claim for relief is based, or (2) after the 180-day time period expired, the
United States Supreme Court recognized a new federal or state right that applies
retroactively to the petitioner and is the basis of his claim for relief. R.C.
2953.23(A)(1)(a).
{¶16} Unless the defendant makes the showing required by R.C. 2953.23(A),
the trial court lacks jurisdiction to consider either an untimely or a second or
successive petition for post-conviction relief. State v. Carter, 2d Dist. No. 03-CA-11,
2003-Ohio-4838, citing State v. Beuke, 130 Ohio App. 3d 633, 720 N.E.2d 962 (1st
Dist.1998).
{¶17} In this case, appellant's petition was unquestionably filed beyond the
180-day time limit set forth in R.C. 2953.21. And appellant failed to meet a timeliness
exception under R.C. 2953.23. Therefore, appellant's petition was untimely and the
trial court was without jurisdiction to entertain it.
{¶18} Accordingly, appellant’s first, second, and third assignments of error are
overruled.
{¶19} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, P.J., concurs.
DeGenaro, J., concurs.