State v. Medina , 2022 Ohio 1070 ( 2022 )

[Cite as State v. Medina, 2022-Ohio-1070.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110726
v. :
ALBERTO MEDINA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 31, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-589200-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Alberto Medina, pro se.
MARY J. BOYLE, J.:
Defendant-appellant, Alberto Medina (“Medina”), pro se, appeals
from the trial court’s denial of his petition for postconviction relief. For the reasons
set forth below, we affirm.
In September 2014, Medina was charged in a 12-count indictment.
Counts 1-2 charged him with aggravated murder. Count 3 charged him with
aggravated burglary. Count 4 charged him with kidnapping. Count 5 charged him
with murder. Counts 6-7 charged him with felonious assault. Count 8 charged him
with domestic violence. Counts 9-11 charged him with endangering children. Count
12 charged him with tampering with evidence.1
In December 2014, Medina entered into a plea agreement with
plaintiff-appellee, the state of Ohio in which he pled guilty to an amended charge of
aggravated murder with a three-year firearm specification (Count 1) and
endangering children as charged in Counts 9-11. The remaining counts were
dismissed. The court then proceeded to sentence Medina to a total of 33 years to life
in prison, which was the jointly recommended sentence as part of the plea
agreement.
In August 2016, more than a year and a half after sentencing, Medina
filed a pro se motion for delayed appeal in State v. Medina, 8th Dist. Cuyahoga No.
104826, claiming that he was never advised of his right to appeal at sentencing.2
This court denied Medina’s motion. Medina filed a pro se delayed appeal with the
Ohio Supreme Court, which was denied in State v. Medina, 149 Ohio St.3d 1405,
1 Each of Counts 1-7 carried one- and three-year firearm specifications. Counts 1-2
also carried a sexually violent predator specification.
2The state indicates in its appellate brief that it “previously acknowledged that the
transcripts do not indicate that Medina was advised of his right to appellate counsel at
that time.”
2017-Ohio-2822, 74 N.E.3d 463. Medina then pursued a pro se writ of habeas
corpus in the United States District Court for the Northern District of Ohio, which
was dismissed in Medina v. Bracy, N.D.Ohio No. 1:17-CV-01884, 2020 U.S. Dist.
LEXIS 251600 (Oct. 22, 2020), and Medina v. Bracy, N.D.Ohio No. 1:17-CV-01884,
2021 U.S. Dist. LEXIS 45536 (Mar. 11, 2021).
In June 2021, Medina filed a pro se petition for postconviction relief
with the trial court. Medina argued that the trial court failed to advise him at
sentencing of his right to appeal, including the right to appellate counsel. He
supported the petition with his own affidavit, in which he stated, if he knew of his
“constitutional rights to appeal and have counsel on said appeal, [he] would
certainly have appealed, minimally, on the issues of ineffective assistance of counsel
and as to whether [his] plea was knowingly, voluntarily and intelligently made.” The
state opposed, and the trial court denied the petition in July 2021.
It is from this order that Medina appeals, raising the following three
assignments of error for review, which shall be discussed together:
Assignment of Error One: [Medina] was denied due process of law
under the Ohio and U.S. Constitutions when the trial court failed to
provide him his right to appeal and subsequently denied his
postconviction petition seeking to restore the jurisdiction of the court
to provide him the constitutional rights which he was deprived of at
sentencing pursuant to State v. Future, [8th Dist. Cuyahoga No. 96997,
2012-Ohio-2300], citing State v. Gover, [71 Ohio St.3d 577, 645 N.E.2d
1246 (1995)].
Assignment of Error Two: [Medina] was denied equal protection
under the law as required by the Fourteenth Amendment to the U.S.
Constitution when he was not afforded the same opportunity to have
his appellate rights provided to him as other similarly situated
defendants.
Assignment of Error Three: [Medina] was denied the effective
assistance of counsel when counsel failed to query for want of appeal,
inform him of his right to appeal and his right to counsel on said appeal,
and other avenues for remedy of the denial of constitutional rights, to
include a postconviction petition.
Within these assigned errors, Medina argues his petition for
postconviction relief is proper under Future and that his direct appeal was untimely
because he was unaware of the time limits to file an appeal. Medina claims his
ignorance was due to the failures of both his defense counsel and the trial court to
inform him of his appellate rights. Medina further claims that the denial of his right
to a timely appeal and appellate counsel violates his constitutional rights to due
process and equal protection. Medina also argues he was denied his right to effective
assistance of counsel when defense counsel failed to explain his right to an appeal.
In Future, the trial court failed to advise the defendant of his appellate
rights. Id. at ¶ 2. The defendant then filed a motion for resentencing three years
after his guilty plea, which the trial court granted. Id. On appeal, this court, relying
on Gover, noted that the appropriate remedy, in this instance, “is first to seek leave
to file a delayed appeal with this court and, if unsuccessful, to then file a motion for
postconviction relief through R.C. 2953.21 with the trial court.” Id. at ¶ 5. As a
result, this court found that the “trial court lacked jurisdiction to vacate a final order
of sentence without a postconviction relief petition” and reversed and remanded the
matter to the trial court with instructions to reinstate its original sentencing entry.
Id. at ¶ 7-8.
In Gover, the trial court informed the defendant of his right to appeal
his conviction at the sentencing hearing but did not take the proper steps to inform
defendant’s attorney of the appointment on appeal. As a result, a timely appeal was
not filed. Ten months later, when the defendant realized that a direct appeal had
not been filed, he moved the appellate court for a delayed appeal on the basis that
he believed an appointed attorney would be bringing the appeal on his behalf. The
appellate court denied the motion for a delayed appeal, and also denied the motion
to reconsider filed by a state public defender. The matter was then appealed to the
Ohio Supreme Court. Id., 71 Ohio St.3d at 577-578, 645 N.E.2d 1246.
The Gover Court held that since the denial of the right to appellate
counsel was due to an error at the trial level, a motion before the appellate court was
not the appropriate way for the defendant to seek relief. Id. at 580. Instead, “Gover
should himself file a petition for postconviction relief under R.C. 2953.21. The time
between the entry of the judgment of conviction and the filing of the postconviction
relief petition will not be problematic, since a petition under that statute may be filed
‘at any time.’ R.C. 2953.21(A).” (Emphasis added.) Id. After the filing of the
petition, R.C. 2953.21(C) requires that the trial court consider whether the petition
presents substantive grounds for relief. The Ohio Supreme Court has “already
established that a failure by a trial court to notify appointed appellate counsel of his
appointment qualifies as a denial of the defendant’s right to counsel[.]” Id. at 581.
The Gover Court concluded that the “appropriate avenue of relief in this case is for
the trial court to reenter the judgment against the defendant, with the result of
reinstating the time within which the defendant may timely file a notice of appeal
pursuant to App.R. 4(A).” Id., citing State v. Miller, 44 Ohio App.3d 42, 541 N.E.2d
105 (6th Dist.1988).
However, at the time Gover was issued in 1995, R.C. 2953.21 did not
set forth a time limit for the filing of a postconviction relief petition. The statute has
subsequently been amended to now provide that in instances where no direct appeal
is taken, the petition shall be filed no later than 365 days after the expiration of the
time for filing the appeal, except as otherwise provided in R.C. 2953.23. R.C.
2953.21(A)(2)(a).
R.C. 2953.23 provides that the trial court may entertain an untimely
petition for postconviction relief if the petitioner demonstrates either (1) the
petitioner was unavoidably prevented from discovering facts necessary for the claim
for relief, or (2) the United States Supreme Court recognized a new federal or state
right that applies retroactively to persons in petitioner’s situation, and the petitioner
establishes by clear and convincing evidence that no reasonable factfinder would
have found him guilty but for constitutional error at trial. R.C. 2953.23(A)(1)(a)-(b).
Alternatively, the trial court may entertain untimely petition for postconviction
relief if the petitioner presents DNA testing that establishes actual innocence. R.C.
2953.23(A)(2).
Here, Medina’s petition for postconviction relief was due in January
2016 since he did not file a direct appeal from his conviction. Medina, however, did
not file his petition until five and a half years later in June 2021. Therefore, Medina’s
petition is clearly untimely. With regard to the relevant exceptions set forth in R.C.
2953.23, Medina did not present “facts” that he was “unavoidably prevented from
discovering,” nor did he identify a new federal or state right recognized by the United
States Supreme Court. R.C. 2953.23(A)(1)(a). Medina also did not conduct DNA
testing that yielded new evidence as set forth in R.C. 2953.23(A)(2). Thus, Medina
has failed to demonstrate any of the R.C. 2953.23 exceptions entitling him relief.
Because none of these exceptions apply, the trial court was without
jurisdiction to consider Medina’s untimely petition for postconviction relief. State
v. Schultz, 8th Dist. Cuyahoga No. 85430, 2005-Ohio-6627, ¶ 11, citing State v.
Warren, 8th Dist. Cuyahoga No. 76612, 2000 Ohio App. LEXIS 5873 (Dec. 14,
2000); State v. Valentine, 8th Dist. Cuyahoga No. 77882, 2000 Ohio App. LEXIS
5686 (Dec. 7, 2000); State v. Wheatt, 8th Dist. Cuyahoga App. No. 77292, 2000
Ohio App. LEXIS 4953 (Oct. 26, 2000); State v. Gaddis, 8th Dist. Cuyahoga No.
77058, 2000 Ohio App. LEXIS 4765 (Oct. 12, 2000); see also State v. Williams, 8th
Dist. Cuyahoga No. 100639, 2014-Ohio-3589, ¶ 7, citing State v. Hutton, 8th Dist.
Cuyahoga No. 80763, 2007-Ohio-5443 (Where this court stated, “The time
requirement for postconviction relief, pursuant to R.C. 2953.21(A), is
jurisdictional.”); State v. Scott, 8th Dist. Cuyahoga No. 106863, 2018-Ohio-4894, ¶
12, citing State v. Alexander, 8th Dist. Cuyahoga No. 105969, 2018-Ohio-1198(Where this court stated, “Generally, the trial court has no jurisdiction to consider
an untimely petition for postconviction relief.”). Therefore, because Medina’s
petition was untimely and no exception under R.C. 2953.23(A) applies, the trial
court properly dismissed his petition for postconviction relief.
Accordingly, the first, second, and third assignments of error are
overruled.
Judgment is 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.
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, P.J., and
EMANUELLA D. GROVES, J., CONCUR