DocketNumber: No. CT2007-0046.
Citation Numbers: 2008 Ohio 2149
Judges: FARMER, P.J.
Filed Date: 4/25/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On September 14, 2006, appellant pled guilty to the charges except for the juvenile specification which had been dismissed. By entry filed October 27, 2006, the trial court sentenced appellant to an aggregate term of three years in prison. No appeal was taken.
{¶ 3} On July 16, 2007, appellant filed a motion for postconviction relief, claiming ineffective assistance of counsel regarding his three year sentence. Appellant was under the impression he was going to receive two years. By entry filed July 17, 2007, the trial court denied the motion.
{¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:
{¶ 7} R.C.
{¶ 8} "(2) Except as otherwise provided in section
{¶ 9} Appellant was sentenced on October 27, 2006. No appeal was taken therefore, appellant's petition for postconviction relief was due one hundred eighty days after November 26, 2006. See, App. R. 4. Appellant's petition filed on July 16, 2007, was untimely.
{¶ 10} Pursuant to R.C.
{¶ 11} (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 *Page 4
claim for relief, or, subsequent to the period prescribed in division (A)(2) of section
{¶ 12} (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."
{¶ 13} In his appellate brief, appellant does not argue that R.C.
{¶ 14} Because appellant's motion did not meet the requirements for untimely filing under R.C.
{¶ 15} As for appellant's argument that the trial court erred in failing to hold an evidentiary hearing, when a petition for postconviction relief is filed untimely and does not meet the requirements of R.C.
{¶ 16} The trial court did not err in failing to conduct an evidentiary hearing on appellant's motion as it was untimely filed. *Page 5
{¶ 17} The sole assignment of error is denied.
{¶ 18} The judgment of the Court of Common Pleas of Muskingum County, Ohio is hereby affirmed.
Farmer, P.J., Wise, J., and Delaney, J., concur.