State v. Walter , 2014 Ohio 393 ( 2014 )

[Cite as State v. Walter, 2014-Ohio-393.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99894
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRANCE J. WALTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-485250
BEFORE: Jones, P.J., S. Gallagher, J., and Keough, J.
RELEASED AND JOURNALIZED: February 6, 2014
FOR APPELLANT
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
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Terrance Walter, pro se, appeals the trial court’s April
17, 2013 judgment denying his petition for postconviction relief. We affirm.
I. Procedural History and Facts
{¶2} Walter and codefendant Antonio Campbell were indicted in 2006 in
connection with the murder of 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 and 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 consecutive 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 convictions were upheld by
this court on appeal, but the aggravated burglary convictions were not. State v. Walter,
8th Dist. Cuyahoga No. 90196, 2008-Ohio-3457. Upon remand, the trial court vacated
the convictions and sentences for the two aggravated burglary counts.
{¶5} Walter attempted to appeal to the Ohio Supreme Court, but the 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
postconviction 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 of error for our review, all of which assert
that his trial counsel was ineffective during the plea negotiations.
II. Law and Analysis
{¶8} Under R.C. 2953.21(A)(2), a petition for postconviction relief
shall be filed no later than one hundred eighty days after the date on which
the transcript 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-day time frame and, as such, was
untimely. However, under R.C. 2953.23, a trial court may entertain an untimely petition
for postconviction relief if the petition meets the following two conditions.
{¶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 a new federal or state right that
applies retroactively to the petitioner. R.C. 2953.23(A)(1)(a). Second, the petitioner
must show by clear and convincing evidence that a reasonable factfinder would not have
found him guilty but for constitutional error at trial. R.C. 2953.23(A)(1)(b).
{¶11} “Unless the defendant makes the showings required by R.C. 2953.23(A), the
trial court lacks jurisdiction to consider either an untimely or a successive petition for
postconviction relief.” State v. Masters, 8th Dist. Cuyahoga No. 99219,
2013-Ohio-3147, ¶ 9, citing State v. Carter, 2d Dist. Clark No. 03CA-11,
2003-Ohio-4838, ¶ 13, and State v. Beuke, 130 Ohio App.3d 633, 636, 720 N.E.2d 962(1st Dist.1998).
{¶12} Walter did not allege any new factual evidence in his petition. Instead, he
maintained that his petition satisfied the exceptions set forth in R.C. 2953.23 based on the
United States Supreme Court decisions in Missouri v. Frye, U.S. , 132
S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, U.S. ___, 132 S.Ct.
1376, 182 L.Ed.2d 398 (2012). According to Walter, Frye and Lafler created a new
retroactive right to effective assistance of counsel during the plea bargaining process
under the Sixth Amendment. Walter also claimed that had he been afforded effective
assistance of counsel during plea negotiations, he would have accepted a plea offer from
the state that included a recommendation for a less stringent sentence than he received.
{¶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 court found that Masters failed to demonstrate
that he met one of the exceptions to the timely filing requirement under R.C.
2953.23(A)(1), and held that the trial court properly denied Masters’s request for relief
without holding a hearing, because the trial court lacked jurisdiction to review an
untimely petition. Masters at ¶ 11.
{¶14} In light of 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 to 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 from 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 common
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