DocketNumber: No. 05-CA-34.
Citation Numbers: 2006 Ohio 5532
Judges: BOGGINS, J.
Filed Date: 10/17/2006
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} Appellee is State of Ohio.
{¶ 4} On November 3, 2003, Appellant pled no contest to the one count of Felonious Assault. Pursuant to a negotiated plea, the charge of attempted murder was dismissed.
{¶ 5} On November 17, 2003, the trial court sentenced Appellant to a prison term of seven (7) years.
{¶ 6} Appellant did not file a direct appeal of his sentence or conviction.
{¶ 7} On October 4, 2004, November 9, 2004, December 8, 2004, January 31, 2005, and February 24, 2005, Appellant filed motions for judicial release, all of which were denied.
{¶ 8} On May 4, 2005, Appellant filed a motion for post-conviction relief.
{¶ 9} On May 23, 2005, Appellant filed a supplement to his motion for post-conviction relief.
{¶ 10} By Judgment Entry dated August 9, 2005, the trial court denied Appellant's Petition.
{¶ 11} It is from the denial of said motion that Appellant now appeals, assigning the following errors for review:
{¶ 13} Supplemental Brief
{¶ 14} "I. THE APPELLANT'S SENTENCE FOR THE FELONIOUS ASSAULT CHARGE IS UNCONSTITUTIONAL IN LIGHT OF RECENT U.S. SUPREME COURT DECISIONS.
{¶ 15} "II. THIS COURT SHOULD VACATE THE TRIAL COURT'S SENTENCE AND REMAND FOR A NEW SENTENCING HEARING OR A JURY TRIAL."
{¶ 17} The State concedes that "a remand for re-sentencing is appropriate", pursuant to State v. Foster,
{¶ 18} Foster, supra, established a bright line rule that any pre-Foster sentence to which the statutorily required findings of fact applied (i.e., non-minimum, maximum and consecutive sentences) pending on direct review at the time thatFoster was decided, must be reversed and remanded for re-sentencing if the sentence is a subject of the appeal. The court in Foster only applied its holding retroactively to cases pending on direct review or not yet final. We therefore find that the State of Ohio erroneously concedes error.
{¶ 19} Appellant's case is not before us on direct appeal but on an appeal from a denial of his motion for post-conviction relief. Appellant never filed a direct appeal in this matter.
{¶ 20} Appellant's motion for post-conviction relief was untimely, pursuant to R.C.
{¶ 21} "a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of [R.C.
{¶ 22} "(1) Both of the following apply:
{¶ 23} "(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
{¶ 24} "(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.
{¶ 25} (2) The petitioner was convicted of a felony, the petitioner is an inmate for whom DNA testing was performed under sections
{¶ 26} Appellant failed to meet his burden under R.C.
{¶ 27} Based on the foregoing, we find that the trial court's denial of Appellant's motion was proper because the trial court was not statutorily authorized to entertain the petition due to its untimeliness. We find appellant's argument based uponBlakely unpersuasive as this sentencing issue is not being raised on direct review.
{¶ 28} Appellant's assignments of error are overruled.
{¶ 29} The judgment in this case is affirmed.
Boggins, J. Wise, P.J and Gwin, J. concur.