State v. Norris , 2013 Ohio 866 ( 2013 )

[Cite as State v. Norris, 2013-Ohio-866.]
STATE OF OHIO, MONROE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MO 4
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
DOWELL W. NORRIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Monroe County, Ohio
Case No. 2005-297
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Elizabeth A. Matune
Special Monroe County Prosecutor/
Assistant Attorney General
Criminal Justice Section
150 East Gay Street, 16th Floor
Columbus, Ohio 43215
For Defendant-Appellant: Dowell Norris, Pro se
#537-122
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, Ohio 43724
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 8, 2013
[Cite as State v. Norris, 2013-Ohio-866.]
WAITE, J.
{¶1} Appellant Dowell W. Norris appeals the dismissal, without a hearing, of
a petition for postconviction relief. He was convicted and sentenced in 2006 on two
counts of illegal assembly or possession of chemicals for the manufacture of drugs.
He was sentenced to two consecutive five-year prison terms. He has had a direct
appeal and the judgment was affirmed, and he litigated a habeas petition in federal
court, which was denied. Appellant's petition for postconviction relief was not timely
filed according to the requirements of R.C. 2953.21(A)(2), and the trial court was
correct in dismissing the petition without a hearing. The statute requires the petition
to be filed within 180 days of the date that the trial transcript is filed with the court of
appeals, and Appellant did not file his petition until four years after that date. The
judgment of the trial court is affirmed.
Case History
{¶2} Appellant was indicted in the Monroe County Court of Common Pleas
on October 21, 2005, on two drug counts, violations of R.C. 2925.041(A). The
charges were based on Appellant's purchase of two gallons of iodine tincture, along
with fourteen boxes of Contac cold capsules and two boxes of Sudafed. These
products are used in the manufacture of methamphetamine. State v. Norris, 7th Dist.
No. 06 MO 5, 2007-Ohio-6915, ¶3. He was convicted by a jury on April 28, 2006. He
filed a direct appeal on July 13, 2006. The transcript was filed with this Court on July
18, 2006 and his conviction and sentence were affirmed on December 12, 2007. Id.He filed an application to reopen the appeal, which was denied. He attempted a
further appeal to the Ohio Supreme Court, but the case was not accepted. 118 Ohio
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St.3d 1510, 2008-Ohio-3369, 889 N.E.2d 1027. He also filed a petition for writ of
habeas corpus in federal court, but this was denied. Norris v. Warden, NCI, No.
2:08-CV-732, 2010 WL 1610321 (S.D.Ohio Apr 19, 2010).
{¶3} On April 29, 2011, Appellant filed a petition for postconviction relief
pursuant to R.C. 2953.21-23. On May 13, 2011, the trial court filed a judgment entry
denying the petition. No hearing was held on the matter. This appeal followed on
June 1, 2011. Appellant's two assignments of error are related and will be treated
together.
ASSIGNMENTS OF ERROR NOS. 1 AND 2
TRIAL COURT COMMITTED PLAIN ERROR BY DENYING
APPELLANT [SIC] PETITION FOR POST-CONVICTION WITHOUT
PROVIDING FINDINGS OF FACTS AND CONCLUSIONS OF LAW
WITH RESPECT TO SUCH DISMISSAL.
TRIAL COURT COMMITTED PLAIN ERROR BY DENYING
APPELLANT’S POST-CONVICTION PETITION WITHOUT A
HEARING ON THE MERITS.
{¶4} This is an appeal of a dismissal of a petition for postconviction relief.
An appellate court reviews a trial court's denial of a petition for postconviction relief
under an abuse of discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-
Ohio-6679, 860 N.E.2d 77, ¶58. An abuse of discretion implies an arbitrary,
unreasonable, unconscionable attitude on the part of the trial court. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
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{¶5} Appellant’s two assignments of error are both related to the dismissal of
his petition. He argues that he should have had a hearing before the petition was
dismissed and that the trial court should have issued findings of facts and
conclusions of law as part of the dismissal. The crucial fact in this appeal is that
Appellant's petition was not filed within the 180-day period allowed by R.C.
2953.21(A)(2). As will be discussed below, once this deadline is missed, the trial
court has no jurisdiction to take any action other than dismissing the petition. In
support of his claim that the court should have issued findings of fact and conclusions
of law, Appellant cites R.C. 2953.21(C), which states: “If the court dismisses the
petition, it shall make and file findings of fact and conclusions of law with respect to
such dismissal.” Appellant fails to cite the equally relevant section of R.C.
2953.21(C) that states: “The court shall consider a petition that is timely filed * * *.”
(Emphasis added.) Findings of fact and conclusions of law are only required for
timely filed petitions. State ex rel. Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-
Ohio-3631, 791 N.E.2d 459, ¶6. Appellant's petition was not filed within the time
frame established by R.C. 2953.21(A)(2), hence, the trial court had no authority
except to dismiss the petition.
{¶6} With respect to the failure to hold a hearing, R.C. 2953.21(C) states:
“Before granting a hearing on a petition filed under division (A) of this section, the
court shall determine whether there are substantive grounds for relief.” Once again,
if the petition is untimely filed, the court is without jurisdiction to hear the petition.
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There are no grounds for relief. Thus, no hearing is necessary or even permitted for
an untimely filed petition.
{¶7} A postconviction proceeding is not an appeal of a criminal conviction; it
is a collateral civil attack on the judgment. Gondor at ¶48; R.C. 2953.21(J). There is
no constitutional right to file a petition for postconviction relief, and the only rights
afforded to a defendant in postconviction proceedings are those specifically granted
by the legislature. State v. Steffan, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994);
R.C. 2953.21(J).
{¶8} Petitions for postconviction relief are governed by R.C. 2953.21 through
R.C. 2953.23. Pursuant to these statutes, any defendant who has been convicted of
a criminal offense and who claims to have experienced a denial or infringement of his
or her constitutional rights may petition the trial court to vacate or set aside the
judgment and sentence. R.C. 2953.21(A).
{¶9} R.C. 2953.21(A)(2) requires that a petition for postconviction relief “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.” The trial transcript in this matter
was filed on July 18, 2006. Therefore, Appellant was required to file his petition by
January 8, 2007. He filed his petition on April 29, 2011, more than four years too
late.
{¶10} The 180-day time period defined in R.C. 2953.21(A)(2) is jurisdictional:
“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
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postconviction relief. State v. Haschenburger, 7th Dist. No. 08-MA-223, 2009-Ohio-
6527, ¶12; State v. Palmer, 7th Dist. No. 08 JE 18, 2009-Ohio-1018, ¶1; State v.
Beuke (1998), 130 Ohio App.3d 633, 720 N.E.2d 962.” State v. Butler, 7th Dist. No.
09 JE 1, 2010-Ohio-2537, ¶15.
{¶11} Based on the plain language of R.C. 2953.21(A)(2), the only exception
to the 180-day requirement is found in R.C. 2953.23(A), which states:
(A) Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a
petition filed after the expiration of the period prescribed in division (A)
of that section or a second petition or successive petitions for similar
relief on behalf of a petitioner unless division (A)(1) or (2) of this section
applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code or
to the filing of an earlier petition, 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.
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(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted
or, if the claim challenges a sentence of death that, but for constitutional
error at the sentencing hearing, no reasonable factfinder would have
found the petitioner eligible for the death sentence.
{¶12} R.C. 2953.23(A)(1)(a) presents two avenues for relief from the 180-day
filing requirement, and Appellant must meet the requirements of one of those in order
for his arguments on appeal to have any merit. As Appellant does not claim to have
been “unavoidably prevented from discovery of the facts” to support his petition, he
must satisfy the second part of R.C. 2953.23(A)(1)(a) and demonstrate the existence
of some new federal or state right recognized by the United States Supreme Court
that applies retroactively to Appellant's situation. Appellant also needs to satisfy the
requirements of R.C. 2953.23(A)(1)(b), i.e., that no reasonable factfinder would have
found the petitioner guilty of the offense but for the constitutional error.
{¶13} Appellant’s explanation for the late filing of his petition appears to be
that new caselaw has arisen that now entitles him to relief. He cites the case of State
v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, which was decided on December
29, 2010. However, the effect of Johnson was to revise the law regarding how trial
courts determine if two offenses are allied in light of the allied offense statute. The
Johnson Court held: “When determining whether two offenses are allied offenses of
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similar import subject to merger under R.C. 2941.25, the conduct of the accused
must be considered.” Id. at syllabus.
{¶14} The Ohio Supreme Court in Johnson has no bearing on Appellant's
petition for postconviction relief. Johnson identified a change in the manner in which
a state law is interpreted and applied. It is not a United States Supreme Court case,
and thus, does not identify any new, retroactive, federal or state right recognized by
the United States Supreme Court. Appellant does not even mention any United
States Supreme Court case in his brief. Thus, he is precluded from relief under R.C.
2953.23(A)(1)(a).
{¶15} Further, the doctrine of res judicata defeats Appellant’s claims
regarding the application of the allied offense statute. The issue of merger of allied
offenses could have been raised on direct appeal, and his failure to raise it on direct
appeal prevents it from being raised in support of postconviction relief. See State v.
Timmons, 10th Dist. No. 11AP–895, 2012-Ohio-2079, ¶11, quoting State v. Rutledge,
10th Dist. No. 11AP-853, 2012-Ohio-2036, ¶13 (“even assuming that appellant's
petition had been timely, the trial court would have been barred from considering the
claims under the doctrine of res judicata as appellant's arguments with respect to
allied offenses and merger ‘under R.C. 2941.25 could have been resolved in
defendant's direct appeal’ ”).
{¶16} In conclusion, Appellant is challenging the dismissal of his petition for
postconviction relief. The petition was not filed within the 180-day time limit set forth
in R.C. 2953.21(A)(2), nor does it meet the requirements of any exception to that time
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limit. Because he did not meet the jurisdictional requirement for filing his petition, the
trial court had no authority to take any action other than to dismiss the petition. There
was no error in the trial court's failure to hold a hearing or failure to issue findings of
fact and conclusions of law. Appellant's two assignments of error are overruled and
the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.