State v. Kulyk

[Cite as State v. Kulyk, 2013-Ohio-2590.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 12 CA 25
JOHN W. KULYK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 09 CR 104
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 20, 2013
APPEARANCES:k
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN JOHN W. KULYK
PROSECUTING ATTORNEY HOCKING CORRECTIONAL FACILITY
139 West 8th Street Post Office Box 59
Cambridge, Ohio 43725 Nelsonville, Ohio
Guernsey County, Case No. 12 CA 25 2
Wise, J.
{¶1} Defendant-Appellant appeals the judgment of the Guernsey County Court
of Common Pleas dismissing his delayed petition for post conviction relief.
{¶2} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶3} (E) Determination and judgment on appeal. The appeal will be determined
as provided by App.R. 11.1. It shall be sufficient compliance with App.R. 12(A) for the
statement of the reason for the court's decision as to each error to be in brief and
conclusionary form. The decision may be by judgment entry in which case it will not be
published in any form.”
{¶4} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusionary decision more quickly than in a case
on the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th
Dist.1983).
{¶5} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE FACTS AND CASE
{¶6} On July 29, 2009, the Guernsey County Grand Jury indicted Appellant on
one count of robbery, a felony of the second degree, in violation of R.C. §2911.02, two
counts of assault, misdemeanors of the first degree, in violation of R.C. §2903.13, and
one count of theft, a misdemeanor of the first degree, in violation of R.C. §2913.02.
Guernsey County, Case No. 12 CA 25 3
{¶7} Appellant proceeded to a jury trial on November 5 and 6, 2009, and was
found guilty of all charges.
{¶8} On November 23, 2009, the trial court sentenced Appellant to six years on
his robbery conviction and a six month sentence on each of the misdemeanors, to run
concurrent with his robbery sentence.
{¶9} On February 9, 2010, Appellant was re-sentenced pursuant to R.C.
§2929.19, as he was incorrectly informed regarding post-release control. At his re-
sentencing, he was again sentenced to six years and was advised that post-release
control is mandatory for three years upon his release from prison.
{¶10} On December 11, 2009, Appellant filed a Notice of Appeal, State v. Kulyk,
Guernsey App. 09 CA 43. Appellant failed to file a brief and the appeal was dismissed
for failure to prosecute.
{¶11} On February 26, 2010, Appellant filed a Notice of Appeal with regard to
his resentencing. By Entry dated May 3, 2011, Appellant's Assignments of Error were
denied, and the judgment of the trial court was affirmed. (See State v. Kulyk, Guernsey
App. 10 CA 08).
{¶12} Appellant filed a Notice of Appeal to the Supreme Court of Ohio. Said
appeal was numbered 2011-1004. By Entry dated August 18, 2011, Appellant's appeal
was not accepted for review because of lack of constitutional issues.
{¶13} On August 15, 2012, Appellant filed a Post-Conviction Petition.
{¶14} On September 20, 2012, the State of Ohio filed its Answer in opposition to
Appellant’s delayed petition.
{¶15} On October 10, 2012, Appellant filed a Reply to the State's Answer.
Guernsey County, Case No. 12 CA 25 4
{¶16} By Judgment Entry dated October 24, 2012, the trial court dismissed the
delayed Post-Conviction Petition without findings of fact and conclusions of law.
{¶17} In response to this denial, Appellant now appeals, raising the following
errors for review:
ASSIGNMENTS OF ERROR
{¶18} “I. THE COMMON PLEAS COURT ABUSED ITS DISCRETION IN THIS
DISMISSAL BY NOT ACCEPTING THE REVISED CODE SECTION 2953.23 IN ITS
ENTIRETY, THEREBY DENYING THIS APPELLAN [SIC] DUE PROCESS AND
EQUAL PROTECTION OF LAW UNDER THE XIV AMENDMENT OF THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, AND 16 OF THE OHIO
CONSTITUTION
{¶19} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
FAILING TO ISSUE FINDINGS OF FACTS AND CONCLUSIONS OF LAW
MANDATED BY OHIO REVISED CODE 2953.21(C) AND (G) AND CIV.R. 52 AND
CRIM.R. 35(C), THEREBY VIOLATING THE APPELLANT'S DUE PROCESS RIGHT
UNDER THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE
OHIO CONSTITUTION.”
I., II.
{¶20} In his two Assignments of Error, Appellant argues that the trial court erred
in dismissing his delayed petition for post conviction relief. We disagree.
{¶21} Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief:
{¶22} “shall be filed no later than one hundred eighty days after the date on
which the trial transcript is filed in the court of appeals in the direct appeal of the
Guernsey County, Case No. 12 CA 25 5
judgment of conviction or adjudication or, if the direct appeal involves a sentence of
death, the date on which the trial transcript is filed in the supreme court. If no appeal is
taken, the petition shall be filed no later than one hundred eighty days after the
expiration of the time for filing the appeal.”
{¶23} As Appellant was originally sentenced in November, 2009, then re-
sentenced in February, 2010, with an appeal from the re-sentencing filed in February,
2010, Appellant’s petition was filed well outside of the 180-day time period.
{¶24} Since Appellant's petition was untimely filed, the trial court was required to
entertain appellant's petition only if he could meet the requirements of R.C. 2953.23(A).
This statute provides, in pertinent part:
{¶25} “* * * [A] court may not entertain a petition filed after the expiration of the
period prescribed in division (A) of that section or a second petition or successive
petitions for similar relief on behalf of a petitioner unless both of the following apply:
{¶26} “(1) Either of the following applies:
{¶27} “(a) 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.
{¶28} “(b) 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.
{¶29} “(2) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the petitioner
Guernsey County, Case No. 12 CA 25 6
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.
“***”
{¶30} In his delayed petition, Appellant asserts that he was denied due process
of law; that he was improperly sentenced on the Robbery charge, that his self-defense
claims were justified and that he was denied the effective assistance of trial counsel and
appellate counsel.
{¶31} Upon review, we find that Appellant has not satisfied the R.C.
2953.23(A)(1)(a) requirement that he was unavoidably prevented from discovery of the
facts upon which he relied to present his claim for post-conviction relief.
{¶32} We find that Appellant does not offer any evidence which was not already
in the record before the trial court. The issues raised by Appellant could have been
raised in his appeal and are therefore res judicata. The doctrine of res judicata bars a
convicted defendant from raising any defense or lack of due process which had been
raised or could have been raised at trial, or on direct appeal from the judgment of
conviction. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of
the syllabus.
{¶33} We find no justifiable reason to explain the delay in filing the petition for
post-conviction relief. Since Appellant's petition was untimely filed, the trial court did not
error in overruling the same.
Guernsey County, Case No. 12 CA 25 7
{¶34} Accordingly, we find that the trial court did not err in dismissing Appellant’s
delayed petition. Appellant’s Assignments of Error are overruled.
{¶35} For the foregoing reasons, the judgment of the Court of Common Pleas of
Guernsey County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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JUDGES
JWW/d 0605
Guernsey County, Case No. 12 CA 25 8
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOHN W. KULYK :
:
Defendant-Appellant : Case No. 12 CA 25
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Guernsey County, Ohio, is affirmed.
Costs assessed to Appellant.
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JUDGES