State v. Masters , 2013 Ohio 3147 ( 2013 )

[Cite as State v. Masters, 2013-Ohio-3147.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99219
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM MASTERS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-527719
BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Joseph J. Ricotta
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, William Masters, appeals from the trial court’s decision
denying his petition for postconviction relief. For the reasons set forth below, we affirm.
I. Factual and Procedural History
{¶2} On January 4, 2010, appellant pled guilty to all charges in an indictment that
charged him with 12 counts of aggravated robbery, 12 counts of kidnapping, and one
count each of disrupting public service and vandalism, all relating to his participation in
the armed robbery of a “high stakes” poker game. On April 14, 2010, the trial court
sentenced appellant to five years on each count of aggravated robbery and kidnapping,
three years on the attendant firearm specifications, and imposed the minimum sentence
for disrupting public service and vandalism. The court ordered the five years for each of
the aggravated robbery and kidnapping convictions to run concurrently with the
mandatory three years for the firearm specifications added to each base crime. Appellant
received a total eight-year prison term.
{¶3} On May 17, 2010, appellant filed his direct appeal with this court. State v.
Masters, 8th Dist. No. 95120, 2011-Ohio-937. In his appeal, appellant argued that the
trial court erred in imposing separate sentences for his aggravated robbery and kidnapping
convictions because they were allied offenses of similar import. On March 3, 2011, this
court remanded the case to the trial court to determine whether appellant’s aggravated
robbery and kidnapping convictions should have merged. Masters at ¶ 10. On May 23,
2011, the trial court held a resentencing hearing and again sentenced appellant to an
eight-year term of imprisonment.
{¶4} Over one year after being resentenced, appellant filed an untimely petition
for postconviction relief pursuant to R.C. 2953.23 on September 20, 2012. In his
petition, appellant argued that he received ineffective assistance of counsel during his
plea proceedings. In his supporting affidavit, appellant alleged that defense counsel
provided ineffective assistance by: (1) failing to adequately convey a formal plea offer in
which the state agreed to recommend a six-year sentence; 1 (2) advising appellant to
cooperate with the police immediately after being charged; (3) improperly
misrepresenting his relationship with the trial court judge; and (4) failing to notify the
court that appellant was under the influence of sedative medication during the plea
hearing. On October 30, 2012, the trial court denied appellant’s petition without a
hearing.
{¶5} Appellant now brings this timely appeal, raising two assignments of error for
review:
I. Appellant was denied the effective assistance of defense counsel during
his plea proceedings.
II. The trial court erred in summarily dismissing his postconviction petition
without according him an evidentiary hearing.
1The state denies making such a plea offer. Instead the state submits that
the plea offer made to defense counsel involved a recommendation of at least seven
years with discretion given to the trial court.
II. Law and Analysis
A. Untimely Petition
{¶6} Although raised in appellant’s second assignment of error, we begin our
analysis by addressing his contention that the trial court erred in dismissing his petition
for postconviction relief without a hearing.
{¶7} Pursuant to 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 trial 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.”
{¶8} In the case sub judice, appellant does not dispute that his petition was filed
outside the 180-day limitation window. Appellant’s petition was, therefore, untimely.
Under R.C. 2953.23, the trial court may not entertain an untimely petition for
postconviction relief unless the petition meets the following two conditions. First, the
petitioner must demonstrate either 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).
{¶9} 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. Carter, 2d Dist. No. 03CA-11, 2003-Ohio-4838, ¶ 13,
citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st Dist.1998).
{¶10} In his petition for postconviction relief, appellant did not allege any new
factual evidence in his case. Rather, he contends that his petition meets the exceptions
set forth in R.C. 2953.23 based on the United States Supreme Court decisions in Lafler v.
Cooper, 566 U.S. , 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye,
566 U.S. , 132 S.Ct. 1399, 182 L.E.2d 379 (2012). Appellant argues that Lafler and
Frye collectively recognize a new retroactive right with respect to the Sixth Amendment
right to effective assistance of counsel during the plea bargaining process. He further
claims that had he been afforded effective assistance of counsel during the plea
bargaining phase, he would have accepted the state’s original plea offer and would have
received a lesser prison term.
{¶11} However, contrary to the arguments raised in appellant’s petition, this court
recently held that Lafler and Frye did not create a new retroactive right. State v. Hicks,
8th Dist. No. 99119, 2013-Ohio-1904, ¶ 14. Thus, appellant has failed to demonstrate
that he meets one of the exceptions to the timely filing requirement set forth in R.C.
2953.23(A)(1). Accordingly, we conclude that the trial court properly denied appellant’s
request for relief without holding a hearing because it was without jurisdiction to review
the untimely petition.
{¶12} Appellant’s second assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶13} Because our resolution of appellant’s second assignment of error is based on
the trial court’s lack of jurisdiction to entertain the merits of appellant’s petition due to its
untimeliness, that issue is dispositive of this appeal. Accordingly, the ineffective
assistance of counsel arguments raised in appellant’s first assignment of error are
rendered moot. App.R. 12(A)(1)(c).
{¶14} 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. Case remanded to the common pleas
court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR