DocketNumber: No. 08CA0059-M.
Citation Numbers: 2009 Ohio 1423
Judges: BELFANCE, Judge.
Filed Date: 3/30/2009
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 3} Lyons filed a timely notice of appeal of his conviction. On April 14, 2003, the trial court transcript was filed in the Court of Appeals. This Court affirmed Lyons' conviction. State v. Lyons, 9th Dist. No. 03CA0023-M,
{¶ 4} On April 28, 2008, Lyons filed a motion for resentencing in the trial court arguing that the trial court failed to adequately inform him about his term of post-release control. The trial court denied Lyons' motion for resentencing on July 17, 2008. The instant appeal followed.
{¶ 6} On the authority of Price, we determine that Lyons' motion for resentencing is more appropriately characterized as a motion for postconviction relief. See, also, State v. Reynolds (1997),
{¶ 8} Pursuant to R.C.
{¶ 9} Lyons appealed his convictions in 2003. The transcript was filed with this Court on April 14, 2003. Lyons' motion for postconviction relief was not filed until April 28, 2008, well outside of the timeframe provided by R.C.
{¶ 10} Pursuant to R.C.
"(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."(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."
{¶ 11} Lyons has not argued that he was unavoidably prevented from discovery of the facts upon which he based his motion, or that the United States Supreme Court has recently recognized a new right that applies retroactively to persons in his situation. Therefore, we determine that the trial court was without authority to consider Lyons' untimely motion for *Page 4 postconviction relief with respect to the alleged inaccuracies concerning post-release control. See Price at ¶ 8. Accordingly, the trial court did not err in denying Lyons' motion.
Judgment affirmed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App. R. 30.
Costs taxed to Appellant.
CARR, P. J. WHITMORE, J. CONCUR *Page 1