State v. Wood ( 2014 )

[Cite as State v. Wood, 2014-Ohio-3966.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1114
Appellee Trial Court No. CR0200502762
v.
Jeffrey Wood DECISION AND JUDGMENT
Appellant Decided: September 12, 2014
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Jeffrey Wood, pro se.
*****
YARBROUGH, P.J.
I. Introduction
{¶ 1} On October 31, 2005, appellant pleaded no contest to two counts of gross
sexual imposition and two counts of rape involving a juvenile. He was found guilty and
sentenced to 26 years in prison. In imposing the sentence, the trial court relied on
sentencing statutes that required judicial fact-finding for the imposition of non-minimum
and consecutive sentences. Appellant appealed his sentence. During the pendency of the
appeal, those statutes were ruled unconstitutional by State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470. Consequently, this court reversed based on the trial
court’s reliance on the excised statutes, and remanded the matter for resentencing. State
v. Wood, 6th Dist. Lucas No. L-05-1420, 2006-Ohio-4910. On remand, the trial court
resentenced appellant to 26 years in prison, this time without making the formerly
required statutory findings. Appellant again appealed, and in State v. Wood, 6th Dist.
Lucas No. L-07-1123, 2008-Ohio-79, we affirmed.
{¶ 2} Five years later, on March 12, 2013, appellant filed a “Supplemental Brief in
support of resentencing” in which he argued that he was entitled to resentencing in
accordance with H.B. 86. Thereafter, on February 4, 2014, appellant filed a “Motion for
Resentencing” in which he sought to clarify his initial filing. In the motion for
resentencing, appellant argued that his motion was not a postconviction petition because
in it he argued that his sentence was void ab initio for failing to follow the sentencing
requirements as written. He contended that he had a liberty interest in receiving
minimum, concurrent sentences unless the trial court made the appropriate factual
findings. The state opposed both motions.
{¶ 3} The trial court, on April 25, 2014, entered its judgment denying appellant’s
motions. The court construed appellant’s motions as petitions for postconviction relief,
and determined that they were untimely and not subject to any exception.
2.
{¶ 4} Appellant has appealed the trial court’s April 25, 2014 judgment, and now
raises the following assignment of error for our review:
1. TRIAL COURT ABUSED DISCRETION WHEN DENYING
ACTION WHEN R.C. 2953.23 PERMITS REVIEW OF PETITION FOR
POSTCONVICTION RELIEF HEARING AFTER DEADLINE
REQUIREMENT PURSUANT TO R.C. 2953.21.
II. Analysis
{¶ 5} In his appeal, appellant appears to concede that his motions were properly
construed as postconviction petitions. “Where a criminal defendant, subsequent to his or
her direct appeal, files a motion seeking vacation or correction of his or her sentence on
the basis that his or her constitutional rights have been violated, such a motion is a
petition for postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio
St.3d 158, 679 N.E.2d 1131 (1997), syllabus. Here, appellant’s motions were filed after
his direct appeal and sought to vacate his sentence on the grounds that his liberty interests
were violated when the trial court failed to follow the sentencing laws. Thus, his motions
are petitions for postconviction relief.
{¶ 6} We review a trial court’s decision granting or denying a postconviction
petition for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion connotes that the trial court’s attitude
is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 219, 450 N.E.2d 1140 (1983).
3.
{¶ 7} 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.” R.C. 2953.21(A)(2). Here, the trial
transcripts were filed in 2006. Thus, appellant’s petition is well beyond the 180-day
statutory time limit.
{¶ 8} A trial court “may not entertain” an untimely petition for postconviction
relief unless the untimeliness is excused. R.C. 2953.23(A). Under R.C. 2953.23(A)(1),
the time limit is excused if both (1) it can be shown that either the petitioner was
unavoidably prevented from discovering the facts relied on in the claim for relief, or that
the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner’s situation and the petition asserts a claim based
on that right; and (2) the petitioner presents clear and convincing evidence that, but for
the constitutional error at trial, no reasonable fact-finder would have found the petitioner
guilty.
{¶ 9} In his attempt to satisfy R.C. 2953.23(A)(1), appellant argues that the facts
he was prevented from discovering were “[his] transcripts and the information provided
at Trial.” Notably, appellant does not argue that the United States Supreme Court has
recognized a new federal or state right, or that, but for the constitutional error, no
reasonable fact-finder would have found him guilty. Instead, appellant states only that
his sentence is contrary to law, and that no fact finder with the sentencing provisions as
prescribed would have been able to lawfully sentence him to the sentence he received.
4.
{¶ 10} We are not persuaded by appellant’s arguments. First, as the state points
out, appellant cannot claim that he was prevented from discovering facts from the
sentencing hearing at which he was present. Second, appellant has identified no new
federal or state right that has been recognized by the United States Supreme Court.
Indeed, his arguments center on the application of Ohio sentencing law, which the trial
court properly applied based on the current law at the time.1 Finally, appellant has not
shown through clear and convincing evidence that, but for the constitutional error, no
reasonable fact-finder would have found him guilty. Therefore, we hold that the trial
court did not abuse its discretion in not considering appellant’s untimely postconviction
petition.
{¶ 11} Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 12} For the foregoing reasons, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
1
Appellant references at several points in his postconviction petitions that he remembers
that our court reversed his initial sentence because the findings made by the trial court did
not warrant the imposition of consecutive sentences. A plain reading of our decision in
State v. Wood, 6th Dist. Lucas No. L-05-1420, 2006-Ohio-4910, reveals that appellant’s
view is patently inaccurate.
5.
L-14-1114
State of Ohio v. Wood
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Stephen A. Yarbrough, P.J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.