DocketNumber: Court of Appeals No. E-05-033, Trial Court No. 2000-CR-509.
Citation Numbers: 2006 Ohio 973
Judges: SKOW, J.
Filed Date: 2/24/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Appellant challenges the dismissal through the following assignment of error:
{¶ 3} "The trial court abused it's [sic] discretion in not granting the defendant's motion to correct an illegal (unconstitutional) sentence, for which the U.S. Supreme Court ruled, any fact other than the fact of a prior conviction that is necessary to enhance a sentence must either be stipulated to by the defendant or proved to a jury beyond a reasonable doubt."
{¶ 4} On January 10, 2001, appellant pled guilty to two counts of gross sexual imposition. The prosecution entered a nolle prosequi to two counts of rape and two counts of sexual battery. At the March 5, 2001, sentencing hearing, appellant, by oral motion, attempted to withdraw his guilty plea based on ineffective assistance of counsel and requested new counsel. The trial court denied both motions, stating that appellant's counsel was not ineffective, considering the facts and circumstances of the case, and that appellant had ample time before sentencing to obtain alternate counsel to review his plea. Appellant was sentenced to a term of four years for each count of gross sexual imposition to be served consecutively.
{¶ 5} On March 1, 2004, appellant filed a notice of delayed appeal. This court dismissed the appeal, finding that appellant failed to assert sufficient cause for his delayed appeal. Appellant then filed a motion for judicial release which was denied by judgment entry filed December 28, 2004.
{¶ 6} On February 25, 2005, appellant filed a petition for postconviction relief. On March 16, 2005, appellant filed a "motion to correct an illegal sentence." On April 27, 2005, the trial court dismissed appellant's petition, stating only that the dismissal was based on this court's holdings in State v. Holt, supra and State v. Curlis, supra.
{¶ 7} The Supreme Court of Ohio held that "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 (1997),
{¶ 8} This court will only reverse a trial court's judgment in a postconviction hearing on a showing that the trial court abused its discretion. State v. Holt, supra, at ¶ 7. "The term abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980),
{¶ 9} Pursuant to R.C.
{¶ 10} Appellant's petition only asserts the decision inBlakely v. Washington as the basis for relief. Since we have held that Blakely's protections do not apply to Ohio's sentencing statutes, see State v. Curlis, supra, the issuance of Blakely does not support an untimely filing of a postconviction petition. State v. Holt, supra. Discretionary appeals raising the issue of Blakely's application to Ohio sentencing law are pending before the Supreme Court of Ohio. SeeState v. Quinones, 8th Dist. No. 83720,
{¶ 11} Based on the foregoing, appellant's assignment of error is not well-taken and the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Erie County.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
Pietrykowski, J., Skow, J., Parish, J., concur.