State v. Elkins

[Cite as State v. Elkins, 2013-Ohio-1468.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2012 CA 28
v. : T.C. NO. 82CR62, 82CR65
RICKY L. ELKINS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 12th day of April , 2013.
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KEVIN S. TALEBI, Atty. Reg. No. 0069198, Prosecuting Attorney, 200 N. Main Street,
Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
RICKY LYNN ELKINS, #172780, Chillicothe Correctional Institute, P. O. Box 5500,
Chillicothe, Ohio 45601
Defendant-Appellant
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DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Ricky Lynn
Elkins, filed July 13, 2012. Elkins appeals from the June 18, 2012 decision of the trial court
which overruled his May 14, 2012 “Motion to Correct Void Sentence.” We hereby affirm
the judgment of the trial court.
{¶ 2} On March 15, 1983, Elkins was convicted, following pleas of guilty, on two
counts of attempted aggravated murder, in violation of R.C. 2923.02(A), and one count of
aggravated arson, in violation of R.C. 2909.02(A)(1)(2). A third count of attempted
aggravated murder was dismissed. Elkins was sentenced to a period of not less than seven
nor more than 25 years on each of the attempted aggravated murder charges, to be served
consecutively, for a total term of not less than 14 nor more than 50 years. He was sentenced
to a term of not less than seven nor more than 25 years on the aggravated arson charges, to
be served concurrently to the consecutive sentences for aggravated attempted murder.
{¶ 3} On December 9, 2011, Elkins filed a notice of appeal from his 1983
judgment entry of conviction and a motion for leave to file a delayed appeal. This Court
denied Elkins’ motion for delayed appeal, and the Supreme Court of Ohio declined to accept
the matter for review. State v. Elkins, 131 Ohio St.3d 1554, 2012-Ohio-2263, 967 N.E.2d
765.
{¶ 4} On May 14, 2012, Elkins filed a “Motion to Correct a Void Sentence,” in
which he asserted that his sentence “is unconstitutional where the determining court has
twice placed [him] in (double) jeopardy by imposing two punishments for a single
conviction, * * * ”, in violation of R.C. 2941.25, Ohio’s multiple count statute. Elkins
requested a new sentencing hearing to correct his “void” sentence. He also asserted that he
received ineffective assistance of counsel.
{¶ 5} On June 18, 2012, the trial court overruled Elkins’ motion, determining as
follows:
The Court finds that, even if Defendant’s allegations were true, such a
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failure to merge offenses would only render the judgment voidable, not void.
State v. Miller, 4th Dist. No. 11CA14, 2012 Ohio 1922, ¶ 1. Because
Defendant could have raised this argument in a direct appeal, his argument is
barred by the doctrine of res judicata. Id. See, also, State v. Britta, 11th Dist.
No. 2011-L-041, 2011 Ohio 6096,¶ 17.
Insofar as Defendant’s motion may be construed as a motion to
withdraw plea or a petition for post-conviction relief, the Court finds the
same to be untimely, without merit and allegations therein belied by the
record.
{¶ 6} Elkins asserts two assigned errors herein as follows:
“APPELLANT HAS A SENTENCE THAT IS CONTRARY TO LAW AS HIS
OFFENSES ARE ALLIED OFFENSES OF SIMILAR IMPORT.”
And,
“APPELLANT HAS CONSTITUTIONAL ISSUES, VIOLATION OF DOUBLE
JEOPARDY CLAUSES, AND VIOLATION OF REVISED CODES.”
{¶ 7} “A motion seeking vacation or correction of a sentence on the basis of
constitutional rights, filed subsequent to direct appeal, is a petition for postconviction relief
allowed by R.C. 2953.21. * * * .” Id. R. C. 2953.21 was amended, effective September
21, 1995, to impose filing deadlines for post-conviction relief petitions, and strict
requirements must be met before a court may address an untimely petition. As this Court
has previously noted: “‘Amended Senate Bill 4, which became effective September 21,
1995, imposed mandatory filing deadlines for petitions for post-conviction relief.’” State v.
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Holt, 2d Dist. Miami No. 00CA51, 2001 WL 303218 (citation omitted), * 1 (March 30,
2001). “The statutory time limits for filing petitions for post-conviction relief are
jurisdictional. * * *.” Holt, * 2.
{¶ 8} R.C. 2953.21(A)(2) provides:
* * * a petition under division (A)(1) of this section 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 judgment of
conviction or adjudication or, * * *. If no appeal is taken, except as
otherwise provided in section 2953.23 of the Revised Code, the petition shall
be filed no later than one hundred eighty days after the expiration of the time
for filing the appeal.
{¶ 9} Section 3 of Am.Sub.Senate Bill 4 provides:
A person who seeks postconviction relief pursuant to sections
2953.21 through 2953.23 of the Revised Code with respect to a case in which
sentence was imposed prior to the effective date of this act * * * shall file a
petition within the time required in division (A)(2) of section 2953.21 of the
Revised Code, as amended by this act, or within one year from the effective
date of this act, whichever is later.
{¶ 10} R.C. 2953.21(A) provides in relevant part:
Whether a hearing is or is not held on a petition filed pursuant to
section 2953.21 of the Revised Code, a court may not entertain a petition
filed after the expiration of the period prescribed in division (A) of that
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section * * * unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(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 * * *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 petitioner was convicted of * * *.
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{¶ 11} Elkins’ petition was due within one year of September 21, 1995, and it was
not timely filed. Further, he did not argue that he was unavoidably prevented from the
discovery of any facts upon which he must rely, or that the United States Supreme Court has
recognized a new federal or state right that applies retroactively to him, pursuant to which he
asserts his claim. Elkins did not contest his guilt in his motion. In other words, he failed to
satisfy the requirements of R.C. 2953.23(A) in order for his untimely petition to be
considered by the trial court. The decision of the trial court that Elkins’ petition for
post-conviction relief is untimely is affirmed.
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FAIN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Kevin S. Talebi
Ricky Lynn Elkins
Hon. Nick A. Selvaggio