State v. Settles , 99 N.E.3d 1012 ( 2017 )

[Cite as State v. Settles, 2017-Ohio-8353.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-17-09
v.
CRAIG L. SETTLES, JUDGMENT
ENTRY
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 97-CR-0092
Judgment Affirmed
Date of Decision: October 30, 2017
APPEARANCES:
Alex Kochanowski for Appellant
Derek W. DeVine for Appellee
Case No. 13-17-09
PRESTON, P.J.
{¶1} Defendant-appellant, Craig L. Settles (“Settles”), appeals the February
28, 2017 judgment entry of the Seneca County Court of Common Pleas dismissing
his petition for post-conviction relief. For the reasons that follow, we affirm.
{¶2} In 1997, Settles was convicted of murder with a firearm specification
and sentenced to “an indefinite term of fifteen (15) years to life as to the charge of
MURDER and a term of three (3) years as a mandatory and consecutive term * * *
due to the defendant having a firearm.” (Doc. Nos. 211, 212). Settles appealed the
trial court’s judgment entry of sentence.1 See State v. Settles, 3d Dist. Seneca No.
13-97-50, 1998 WL 667635, *1 (Sept. 30, 1998). In that direct appeal, we affirmed
the judgment of the trial court. Id. at *8.
{¶3} On August 8, 2016, Settles filed a “Petition for Writ of Habeas Corpus
Pursuant to Ohio Revised Code 2953.21.” (Doc. No. 235). In his “petition,” Settles
requested “vacating the sentence imposed” by the trial court. (Id. at 6). As grounds
for the requested relief, Settles alleged that his “Eighth and Fourteenth Amendment
Right [sic] to freedom from cruel and unusual punishment as guaranteed under the
Ohio and United States Constitutions” were denied. (Id. at 1). Additionally, Settles
stated as a ground for relief that he received ineffective assistance of trial counsel.
1
In Settles’ direct appeal from his convictions and sentence, this court recited much of the factual and
procedural background of this case, and we will not duplicate those efforts here. See State v. Settles, 3d Dist.
Seneca No. 13-97-50, 1998 WL 667635 (Sept. 30, 1998).
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(Id.). The State, treating Settles’ petition as a petition for post-conviction relief,
filed its memorandum in opposition to Settles’ petition on September 6, 2016. (Doc.
No. 238). On September 16, 2016, Settles filed his reply to the State’s memorandum
in opposition to his petition. (Doc. No. 239).
{¶4} Treating Settles’ petition as a petition for post-conviction relief, the trial
court dismissed Settles’ petition on February 28, 2017. (Doc. No. 241).
{¶5} On March 27, 2017, Settles filed a notice of appeal. (Doc. No. 242).
He raises three assignments of error for our review. We will address the
assignments of error together.
Assignment of Error I
Mr. Settles’ Appeal Must Be Considered on its Merits.
Assignment of Error II
The Trial Court Erred in Denying Mr. Settles’ Petition for a Writ
of Habeas Corpus When it Failed to Find That Mr. Settles’s [sic]
Right to Be Free from Cruel and Unusual Punishment Pursuant
to the Eighth and Fourteenth Amendments to the United States
Constitution Was Violated When Mr. Settles was Sentenced to a
Disproportionate Sentence Despite His Lessened Culpability.
Assignment of Error III
The Trial Court Erred in Failing to Find That Mr. Settles
Received Ineffective Assistance of Trial Counsel in violation of his
Sixth And Fourteenth Amendment Rights and as a Result, Mr.
Settles was denied Due Process and a Fair Trial under the Fifth
and Fourteenth Amendments to the Ohio and United States
Constitutions.
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{¶6} In his first assignment of error, Settles argues that the trial court erred
by denying his “petition for a writ of habeas corpus” because his “sentence is void
as being unconstitutional.” (Appellant’s Brief at 11-12). In his second assignment
of error, Settles argues that the trial court erred by denying his petition because his
sentence violates the “Eighth and Fourteenth Amendments of the Ohio and United
States Constitutions” under Graham v. Florida, Miller v. Alabama, and
Montgomery v. Louisiana. (Appellant’s Brief at 11, 18). 560 U.S. 48, 130 S. Ct.
2011 (2010); 567 U.S. 460, 132 S. Ct. 2455 (2012); ___ U.S. ___, 136 S. Ct. 718
(2016). In his third assignment of error, Settles argues that the trial court erred by
denying his petition because he received the ineffective assistance of trial counsel.
{¶7} As an initial matter, we must address Settles’ erroneous understanding
of petitions for a writ of habeas corpus and post-conviction relief. Writs of habeas
corpus are civil actions and cannot be filed in criminal actions. See Fuqua v.
Williams, 100 Ohio St. 3d 211, 2003-Ohio-5533, ¶ 7 (“under Ohio law, state writ
actions are civil actions”). Since Settles’ petition was filed in his criminal case and
cited R.C. 2953.21—Ohio’s post-conviction-relief statute—the State and the trial
court treated Settles’ petition as a petition for post-conviction relief. We do the
same. See State v. Snuggs, 3d Dist. Henry Nos. 7-16-03, 7-16-05, 2016-Ohio-5466,
¶ 4 (“‘When a post-judgment motion in a criminal case seeks the vacation of the
imposed sentence on the grounds that a constitutional violation occurred * * *, the
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defendant’s motion will be deemed a petition for post-conviction relief.’”), quoting
State v. Osco, 11th Dist. Portage No. 2014-P-0010, 2015-Ohio-45, ¶ 13, and citing
State v. Reynolds, 79 Ohio St. 3d 158 (1997) and State v. Timmons, 10th Dist.
Franklin No. 11AP-895, 2012-Ohio-2079, ¶ 6.
{¶8} As we noted above, “R.C. 2953.21 governs petitions for post-conviction
relief.” State v. Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing
State v. Kinstle, 3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets
forth who may petition for post-conviction relief:
Any person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the
person’s rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States * * * may
file a petition in the court that imposed sentence, stating the grounds
for relief relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief. The
petitioner may file a supporting affidavit and other documentary
evidence in support of the claim for relief.
R.C. 2953.21(A)(1)(a).
{¶9} The version of the statute in effect at the time Settles committed the
underlying offense sets forth the time requirements for filing a petition for post-
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conviction relief and provides, in relevant part, “[a] petition under division (A)(1)
of this section 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 or adjudication.” R.C. 2953.21(A)(2) (1996) (current
version at R.C. 2953.21(A)(2) (2017)). A trial court lacks jurisdiction to entertain
an untimely petition for post-conviction relief unless the defendant demonstrates
that one of the R.C. 2953.23(A) exceptions applies. State v. Martin, 10th Dist.
Franklin No. 17AP-6, 2017-Ohio-5657, ¶ 9; R.C. 2953.23(A) (1995) (current
version at R.C. 2953.23(A) (2017)).
{¶10} A trial court may not entertain an untimely post-conviction petition
unless the petitioner initially demonstrates either (1) he was unavoidably prevented
from discovering the 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 the petitioner’s situation. R.C. 2953.23(A)(1)(a), (b) (1995) (current
version at R.C. 2953.23(A)(1)(a) (2017)). “If the petitioner is able to satisfy one of
these threshold conditions, he must then demonstrate by clear and convincing
evidence that, but for the constitutional error at trial or the sentencing hearing, no
reasonable fact-finder would have found him guilty of the offenses.” State v.
Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶ 13; R.C.
2953.23(A)(2) (1995) (current version at R.C. 2953.23(A)(1)(b) (2017)).
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{¶11} “‘“[A] trial court’s decision granting or denying a postconviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial court’s finding on a
petition for postconviction relief that is supported by competent and credible
evidence.”’” State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-5669, ¶ 10,
quoting State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-Ohio-2309, ¶ 7,
quoting State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679, ¶ 58. An abuse of
discretion implies the trial court acted unreasonably, arbitrarily, or unconscionably.
State v. Adams, 62 Ohio St. 2d 151, 157 (1980).
{¶12} The trial court did not abuse its discretion by dismissing Settles’
petition for post-conviction relief. Settles’ statutory deadline for filing a petition for
post-conviction relief was 180 days after the date on which the trial transcripts were
filed in this court in his direct appeal. The trial transcripts in Settles’ direct appeal
were filed on March 27, 1998. Settles had until September 24, 1998 to file his
petition for post-conviction relief. Settles did not file his petition for post-conviction
relief until August 8, 2016, many years after his deadline passed. Thus, Settles’
petition is untimely. See Martin at ¶ 8. As such, the trial court lacked jurisdiction
to consider Settles’ untimely petition for post-conviction relief unless he
demonstrated that one of the exceptions in R.C. 2953.23(A)(1)(a) or (b) applies. Id.
See also Baker at ¶ 15.
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{¶13} Settles’ petition cites two reasons that his petition meets the exceptions
in R.C. 2953.23(A)—namely, (1) that the United States Supreme Court issued cases
recognizing new federal and state rights that retroactively apply to his situation and
(2) that he received the ineffective assistance of trial counsel. Under Settles’ first
reason why his petition meets the statutory-timeliness exception, Settles claims that
the United States Supreme Court issued cases announcing new and federal state
rights that retroactively apply to individuals in his situation. According to Settles,
those cases are Graham, Miller, and Montgomery. 560 U.S. 48; 567 U.S. 460; ___
U.S. ___, 136 S. Ct. 718.
{¶14} In Graham, the United States Supreme Court held that the Eighth
Amendment to the United States Constitution prohibits the imposition of sentences
of life imprisonment without parole, or their equivalents, on juvenile non-homicide
offenders. State v. Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, ¶ 35, citing
Graham at 74. Under Miller, “[a] court, in exercising its discretion under R.C.
2929.03(A), must separately consider the youth of a juvenile offender as a
mitigating factor before imposing a sentence of life without parole.” State v. Long,
138 Ohio St. 3d 478, 2014-Ohio-849, paragraph one of the syllabus, citing Miller.
Finally, “Montgomery involved the application of the court’s decision in Miller
prohibiting the automatic imposition of a life-without-parole sentence on a
defendant who had committed a homicide as a juvenile.” Moore at ¶ 98, citing
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Montgomery at 734. See also State v. Russell, 10th Dist. Franklin No. 16AP-542,
2017-Ohio-2871, ¶ 24.
{¶15} “Generally, a new decision does not apply to convictions that were
final when the decision was announced.” Moore at ¶ 97. However, the Supreme
Court of the United States held in Montgomery that “‘courts must give retroactive
effect to new substantive rules of constitutional law. Substantive rules include * *
* “rules prohibiting a certain category of punishment for a class of defendants
because of their status or offense.”’” Id., quoting Montgomery at 728, quoting Penry
v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934 (1989). Further, “‘when a new
substantive rule of constitutional law controls the outcome of a case, the
Constitution requires state collateral-review courts to give retroactive effect to that
rule.’” Id. at ¶ 98, quoting Montgomery at 729.
{¶16} Although Graham, Miller, and Montgomery were issued after Settles
was sentenced and involve substantive rules of constitutional law that would apply
retroactively, Settles’ sentence does not fall under the purview of those cases. See
id. at ¶ 97-98 (noting that Graham, Miller, and Montgomery involve substantive
rules of constitutional law that can apply retroactively). Indeed, Settles, who was a
juvenile at the time the murder offense was committed, was not sentenced to life-
without-parole or an equivalent sentence. Rather, Settles was sentenced to an
indefinite term of 15 years to life, with an additional 3 years incarceration for the
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firearm specification. As such, none of the cases that Settles directs us to establish
a new right that applies to Settles’ situation. See Russel at ¶ 24. Therefore, Settles’
argument does not meet the timeliness exception for cases issued recognizing new
federal or state rights that retroactively apply to his situation.
{¶17} In his ineffective-assistance-of-trial-counsel argument, Settles argues
that his trial counsel was ineffective for failing to: (1) “Obtain An Expert Mental
Evaluation [and] Present any of the Highly Relevant Mitigating Factors at Trial or
Sentencinge [sic]”; (2) “Argue that Juvenile Rule 30 required that a Juvenile be 15
years old in order for the Juvenile Court to Consider Whether the case Should Be
Transferred to the Court of Common Pleas”; and (3) “Object to, and Ultimately
Move for a Mistrial, Based on the Introduction of Perjured Testimony from Multiple
Witnesses Who Testified on the State’s Behalf.” (Doc. No. 235).
{¶18} “‘“The phrase ‘unavoidably prevented’ means that a defendant was
unaware of those facts and was unable to learn of them through reasonable
diligence.”’” State v. Aultman, 2d Dist. Champaign No. 2016-CA-14, 2017-Ohio-
758, ¶ 19, quoting State v. Rainey, 2d Dist. Montgomery No. 23851, 2010-Ohio-
5162, ¶ 13, quoting State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-
798, ¶ 19. Settles’ ineffective-assistance-of-trial-counsel allegations pertain to
matters that occurred at or before trial. Settles offers no argument that he was
unavoidably prevented from discovering the alleged ineffectiveness of his trial
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counsel—that is, Settles makes no argument that he was unaware of those facts or
unable to learn of them from reasonable diligence. Rather, those facts were
available to him at the time of trial. See State v. Russell, 10th Dist. Franklin No.
05AP-391, 2006-Ohio-383, ¶ 9 (noting that Russell’s ineffective-assistance-of-
counsel claims were “based on facts and circumstances that occurred during his
trial” and that because he “was present at his trial and had knowledge of all these
facts and circumstances as they happened,” Russell failed to establish the
applicability of any of the statutory timeliness exceptions); Rainey at ¶ 18. See also
State v. Davis, 8th Dist. Cuyahoga No. 88189, 2007-Ohio-1305, ¶ 11. Further,
because those facts were available to Settles at the time of trial, he could have raised
his ineffective-assistance argument in his direct appeal, but did not. See Settles,
1998 WL 667635. For these reasons, Settles failed to show that he was unavoidably
prevented from discovering his trial counsel’s alleged ineffective assistance. See
Aultman at ¶ 19; State v. Eicholtz, 2d Dist. Clark No. 13-CA-100, 2014-Ohio-3837,
¶ 22. Accordingly, Settles’ ineffective-assistance argument does not meet the
timeliness exception under the statute.
{¶19} For these reasons, the trial court’s conclusion that Settles’ petition is
untimely is supported by competent, credible evidence. As such, the trial court did
not abuse its discretion by dismissing Settles’ petition for post-conviction relief.
{¶20} Settles’ assignments of error are overruled.
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{¶21} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
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