State v. Hunt , 2022 Ohio 458 ( 2022 )

[Cite as State v. Hunt, 2022-Ohio-458.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29977
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KENNETH R. HUNT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 02 07 1966
DECISION AND JOURNAL ENTRY
Dated: February 16, 2022
HENSAL, Judge.
{¶1} Kenneth Hunt appeals a judgment of the Summit County Court of Common Pleas
that dismissed his motion in arrest of judgment pursuant to repeal of statute. For the following
reasons, this Court affirms.
I.
{¶2} In 2002, Mr. Hunt pleaded guilty to one count of murder and one count of
felonious assault. The trial court sentenced him to 15 years to life in prison and ordered his
sentence to run consecutive to the sentence he had received in a different case. Mr. Hunt did not
appeal. In 2021, Mr. Hunt filed a “motion in arrest of judgment pursuant to repeal statute[,]”
arguing that he had been coerced into pleading guilty and that the statute that he had been
sentenced under had actually been repealed at the time of the alleged offenses. According to Mr.
Hunt, the longest sentence he should have received is 10 years.
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{¶3} The State moved to dismiss Mr. Hunt’s motion. The trial court granted the State’s
motion, concluding that Mr. Hunt had received the mandatory sentence for murder and that Mr.
Hunt’s motion was without merit. Mr. Hunt has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
JUDGE CORRIGAN [SIC] JONES WAS IN ERROR AND THE APPELLANT
WAS PREJUDICE[D] WHEN THE COURT REFUSED TO OBEY FOLLOW
AND UPHOLD THE LAW AS CITED IN: CALKINS V. STATE, 14 OHIO ST.
222 IN THE INSTANT CASE.
{¶4} In his first assignment of error, Mr. Hunt argues that the trial court incorrectly
dismissed his motion and that it should have followed Calkins v. State, 14 Ohio St. 222 (1863).
According to Mr. Hunt, because the statute he was sentenced under had been repealed in 1996,
he should have received a definite sentence under a newer sentencing law instead of an indefinite
sentence.
{¶5} Initially, we must address the nature of Mr. Hunt’s motion in arrest of judgment
pursuant to repeal of statute. “Courts may recast irregular motions into whatever category
necessary to identify and establish the criteria by which the motion should be judged.” State v.
Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. Revised Code Section 2953.21(A)(1)(a)(i)
provides that “[a] person * * * may file a petition in the court that imposed sentence * * * asking
the court to vacate or set aside the judgment or sentence” who “has been convicted of a criminal
offense * * * and who claims that there was such a denial or infringement of the person’s rights
as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the
United States * * *.” Interpreting that language, the Ohio Supreme Court has held that, if “a
criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or
correction of his or her sentence on the basis that his or her constitutional rights have been
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violated, such a motion is a petition for postconviction relief as defined in R.C. 2953.21.” State
v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus.
{¶6} In his motion, Mr. Hunt argued that he was sentenced under a statute that had
been repealed, that he was coerced into pleading guilty, and that the trial court had failed to
properly impose consecutive sentences. These allegations, if true, would be violations of Mr.
Hunt’s constitutional due process rights. Mr. Hunt also sought to have his sentence declared null
and void. Upon review of the record, we conclude that Mr. Hunt’s motion met the requirements
of a petition for post-conviction relief and should be considered as such a petition.
{¶7} Under Section 2953.21(A)(2)(a), if a defendant does not file a direct appeal, a
petition for post-conviction relief “shall be filed no later than three hundred sixty-five days after
the expiration of the time for filing the appeal.” “A trial court may not entertain untimely or
successive petitions for post-conviction relief unless the petitioner satisfies certain
requirements.” State v. Little, 9th Dist. Lorain No. 20CA011662, 2021-Ohio-1446, ¶ 8. “First,
he must show either that (1) he was ‘unavoidably prevented’ from discovering the facts he relies
on, or (2) subsequent to the 365-day deadline, ‘the United States Supreme Court recognized a
new federal or state right that applies retroactively to persons in [his] situation, and the petition
asserts a claim based on that right.’” Id., quoting R.C. 2953.23(A)(1)(a). “Second, he must
show ‘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 he was convicted * *
*.’” Id., quoting R.C. 2953.23(A)(1)(b).
{¶8} Mr. Hunt did not make any attempt to show why his motion satisfied the
requirements of Section 2953.23(A)(1)(a). Even on the assumption that Mr. Hunt is correct
about his allegations, he has not shown that he could not have discovered whether the statute he
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was sentenced under had been repealed within the 365-day time limit for filing a petition for
post-conviction relief. We, therefore, conclude that Mr. Hunt’s motion was untimely and that
the trial court did not err when it granted the State’s motion to dismiss. Mr. Hunt’s first
assignment of error is overruled.
ASSIGNMET OF ERROR II
JUDGE CORRIGAL [SIC] JONES WAS IN ERROR AND THE APPELLANT
WAS PREJUDICED[ ] WHEN THE COURT GRANTED THE STATE’S
MOTION TO DISMISS. WHEN IT DID NOT[ ] OPPOSE [OR] ADDRESS THE
ISSUES IN APPELLANT’S MOTION TO ARREST THE JUDGMENT
ACCORDING TO THE REPEAL OF THE STATUTE IN THIS CASE.
{¶9} In his second assignment of error, Mr. Hunt argues that the State failed to address
the issues he raised when it responded to his motion. He argues that the State did not comment
on his allegation that the statute he had been sentenced under had been repealed, his allegation
that the trial court failed to properly impose consecutive sentences, or his allegation that he was
forced into pleading guilty.
{¶10} Section 2953.21(E) provides in relevant part that “the prosecuting attorney shall
respond by answer or motion” “[w]ithin ten day after the docketing” of a petition for post-
conviction relief. There is no statute or rule, however, providing what the contents of the
response must contain. The State, nevertheless, did address the merits of Mr. Hunt’s argument
that the sentencing statute had been repealed. The State’s primary argument, however, was that
Mr. Hunt needed to have raised his arguments on direct appeal.
{¶11} Upon review of the record, we conclude that Mr. Hunt has failed to establish that
the State’s response to his petition for post-conviction relief was improper. Mr. Hunt’s second
assignment of error is overruled.
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ASSIGNMENT OF ERROR III
JUDGE CORRIGALL JONES WAS IN ERROR AND THE APPELLANT WAS
PREJUDICED, WHEN THE COURT WAS BIAS[ED], PARTIAL AND
DISCRIMINATE[D] AGAINST THE APPELLANT. WHEN HIS CLAIMS
AND ARGUMENT ARE GENUINE, SOUND AND IN COMPLIANCE WITH
FEDERAL AND STATE CONSTITUTIONAL LAW.
{¶12} In his third assignment of error, Mr. Hunt argues that the trial court demonstrated
bias and discriminated against him when it refused to acknowledge his arguments. Mr. Hunt
argues that the trial court’s decision, therefore, should be reversed and remanded for the trial
court to resentence him.
{¶13} Judicial bias is demonstrated by “a hostile feeling or spirit of ill will or undue
friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed
anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind
which will be governed by the law and [the] facts.” State v. Jackson, 149 Ohio St.3d 55, 2016-
Ohio-5488, ¶ 33, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph
four of the syllabus. “A judge is presumed to follow the law and not to be biased, and the
appearance of bias or prejudice must be compelling to overcome these presumptions.” In re
Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, ¶ 5. “[D]isagreement with a
judge’s ruling on legal issues and the management of the case are not evidence of bias or
prejudice, but rather issues subject to appeal.” King v. Divoky, 9th Dist. Summit No. 29769,
2021-Ohio-1712, ¶ 48. “Nor is disagreement with the outcome of the case proof of bias to
demonstrate a due process violation.” Id.{¶14} In its order, the trial court addressed the merits of Mr. Hunt’s argument that the
statute he had been sentenced under had been repealed six years before his sentence. The court
determined that Mr. Hunt was incorrect about whether the statute had been repealed and
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explained that the sentence for murder at the time of his offense was an indefinite term of 15
years to life. Although the court did not discuss Mr. Hunt’s other arguments in detail, it wrote
that “upon consideration of the issues raised and the appropriate law, the court finds the
defendant’s motion to be without merit and denies it accordingly.”
{¶15} The record does not contain any indication that the trial court exhibited bias or
discriminated against Mr. Hunt. Mr. Hunt’s third assignment of error is overruled.
III.
{¶16} The trial court correctly granted the State’s motion to dismiss and denied Mr.
Hunt’s motion in arrest of judgment pursuant to repeal statute. Mr. Hunt’s assignments of error
are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Summit, 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(C). 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.
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Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
TEODOSIO, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
KENNETH R. HUNT, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.