State v. Nelms

[Cite as State v. Nelms, 2015-Ohio-3202.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 14 CAA-11-0073
DAVID NELMS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 12 CRI 09 0362
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: August 10, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
DOUGLAS N. DUMOLT Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 14 CAA-11-0073 2
Wise, J.
{¶1}. Appellant David Nelms appeals the decision of the Court of Common
Pleas, Delaware County, which denied his petition for post-conviction relief. Appellee is
the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2}. In September 2012, the Delaware County Grand Jury indicted Appellant
Nelms on one count of engaging in a pattern of corrupt activity ("EPCA"), one count of
trafficking in persons, one count of trafficking in heroin, one count of possession of
heroin, five counts of compelling prostitution, and eight counts of promoting
prostitution. Fourteen of the counts included a human trafficking specification pursuant
to R.C. 2941.1422.
{¶3}. On February 21, 2013, appellant filed a motion to dismiss for lack of
proper venue, claiming all but one of the alleged offenses did not occur in Delaware
County. The trial court conducted a hearing on the motion to dismiss on March 15,
2013. Via judgment entry filed March 19, 2013, the court denied the motion.
{¶4}. On May 20, 2013, appellant filed a motion to suppress evidence, arguing
that the search warrant affidavits utilized by the investigating police officers did not
provide a basis for probable cause. The next day, the trial court issued a judgment
entry finding the motion to suppress had been untimely filed, and denying same.
{¶5}. On June 11, 2013, appellant appeared before the trial court and pled no
contest to the EPCA count and the heroin possession counts, pursuant to a plea
agreement with the State. The remaining counts, including the specifications, were
dismissed. Via judgment entry filed June 12, 2013, the trial court found appellant guilty.
Delaware County, Case No. 14 CAA-11-0073 3
The trial court thereafter sentenced appellant to an aggregate term of twelve years in
prison.
{¶6}. Appellant thereupon filed a direct appeal to this Court, raising in the single
assigned error his claim that the trial court lacked subject matter jurisdiction because
the crimes alleged were committed in Franklin County, not Delaware County. This
Court overruled the assignment of error, finding that pursuant to R.C. Chapter 2939
and R.C. 2901.12(H), the trial court's venue and the grand jury's jurisdiction were
proper in Delaware County. See State v. Nelms, 5th Dist. Delaware No. 13 CAA 07
0055, 2014-Ohio-3316, issued July 28, 2014. Appellant then sought review in the Ohio
Supreme Court. On February 18, 2015, however, the Court declined to accept
jurisdiction. See State v. Nelms, 141 Ohio St.3d 1475, 25 N.E.3d 1081, 2015-Ohio-
554.
{¶7}. On April 18, 2014, while his aforesaid direct appeal was pending,
appellant filed a pro se petition for post-conviction relief. Appellant therein set forth
three arguments in support. First, he alleged his trial counsel was constitutionally
deficient for failing to properly demonstrate to the trial court the alleged lack of venue.
Secondly, he alleged his trial counsel failed to timely file a motion to suppress evidence
obtained via search warrants. Finally, he alleged trial counsel was not prepared for
various hearings, referencing counsel's motion to withdraw as counsel.
{¶8}. On April 28, 2014, the State filed a memorandum contra appellant's PCR
petition.
{¶9}. On May 20, 2014, appellant filed a "reply motion" regarding the State's
memorandum contra.
Delaware County, Case No. 14 CAA-11-0073 4
{¶10}. On June 30, 2014, the trial court issued a judgment entry denying
appellant's PCR petition without a hearing.
{¶11}. Appellant filed a pro se notice of appeal on August 1, 2014. That appeal
was designated as case number 14CAA080043 in this Court. However, via judgment
entry dated August 21, 2014, we dismissed that appeal as untimely under the thirty-day
rule of App.R. 4(A). Appellant, via counsel, sought reconsideration of said dismissal,
which we denied on October 27, 2014.
{¶12}. Appellant, again via counsel, then filed a new notice of appeal on
November 4, 2014 with a request for leave to file a delayed appeal under App.R. 5(A).
On December 15, 2014, this Court granted leave to appeal under the present case
number, 14CAA110073.
{¶13}. Appellant now raises the following sole Assignment of Error:
{¶14}. “I. THE TRIAL COURT VIOLATED THE STATE AND FEDERAL
CONSTITUTIONS, AND R.C. 2953.21, BY DENYING APPELLANT'S PETITION FOR
POST-CONVICTION RELIEF WITHOUT FIRST HOLDING AN EVIDENTIARY
HEARING.”
I.
{¶15}. In his sole Assignment of Error, appellant contends the trial court erred
and violated his constitutional rights by denying his PCR petition without holding a
hearing.
{¶16}. It is well-settled that a petition for post-conviction relief brought pursuant to
R.C. 2953.21 will be granted only where the denial or infringement of constitutional
rights is so substantial as to render the judgment void or voidable. State v. Jackson,
Delaware County, Case No. 14 CAA-11-0073 5
Delaware App.Nos. 04CA–A–11–078, 04CA–A–11–079, 2005–Ohio–5173, ¶ 13, citing
State v. Walden (1984), 19 Ohio App.3d 141, 146, 483 N.E.2d 859. A petition for post-
conviction relief does not provide a petitioner a second opportunity to litigate his or her
conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the
petition. State v. Wilhelm, Knox App.No. 05–CA–31, 2006–Ohio–2450, ¶ 10, citing
State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819.
{¶17}. However, before we can consider the merits of the within appeal, we must
consider our jurisdiction to further proceed. “Where an untimely appeal has been filed,
an appellate court lacks jurisdiction to consider the merits, and the appeal must be
dismissed.” State v. Myers, 9th Dist. Wayne No. 08CA0041, 2009–Ohio–2082, ¶ 7.
{¶18}. Appellant herein has tried to overcome the jurisdictional timeliness barrier
of App.R. 4(A) by relying on App.R. 5(A), which allows for seeking leave to pursue a
delayed appeal regarding, inter alia, "criminal proceedings." However, the Ohio
Supreme Court, in State v. Nichols (1984), 11 Ohio St.3d 40, 463 N.E.2d 375, held that
a petition for post-conviction relief is a civil action to which an App.R. 5(A) motion for
delayed appeal does not apply.
{¶19}. While we recognize the parties in the case sub judice have already duly
briefed this case, we cannot ignore the clear holding of Nichols.
{¶20}. Accordingly, we hold the present appeal was improvidently allowed and
must be dismissed for want of appellate jurisdiction.
Delaware County, Case No. 14 CAA-11-0073 6
{¶21}. For the reasons stated in the foregoing opinion, the appeal of the
judgment of the Court of Common Pleas, Delaware County, Ohio, is hereby dismissed.
By: Wise, J.
Hoffman, P. J., and
Delaney, J., concur.
JWW/d 0710