State v. Pedraza , 2021 Ohio 2976 ( 2021 )

[Cite as State v. Pedraza, 2021-Ohio-2976.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 20CA0067-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
BENJAMIN PEDRAZA, III COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 18CR0990
DECISION AND JOURNAL ENTRY
Dated: August 30, 2021
HENSAL, Presiding Judge.
{¶1} Benjamin Pedraza III appeals from the judgment of the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} This is the second time this case has been before this Court. In State v. Pedraza,
9th Dist. Medina No. 19CA0049-M, 2020-Ohio-2661, Mr. Pedraza raised two assignments of
error that challenged his sentence for pandering sexually oriented material involving a minor. Id.
at ¶ 5, 15. He also argued that his trial counsel provided ineffective assistance. Id. at ¶ 24. This
Court overruled all three assignments of error. Id. at ¶ 14, 23, 29.
{¶3} Then, on June 11, 2020, Mr. Pedraza filed a pro se “Motion to Dismiss
Conviction and Discharge Pursuant to R.C. 2945.71-73 Speedy Trial Violation[.]” The trial
court construed his motion as a petition for post-conviction relief under Revised Code Section
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2953.21, and denied it on the basis of res judicata. It concluded that Mr. Pedraza could have
raised the speedy-trial issue at trial, and then on his first appeal to this Court.
{¶4} Over four months later, on October 26, 2020, Mr. Pedraza filed a “Motion with
Supporting Memorandum to Dismiss Indictment for Failure of the State to Provide Defendant
Incarcerated in Lieu of Bail with Speedy Trial Under Ohio Rev. Code 2945.71 Crim. Rule 48[.]”
Mr. Pedraza requested that the trial court dismiss the case against him, and discharge him. The
trial court summarily denied his motion without explaining its reasoning. This appeal followed.
Mr. Pedraza now raises two assignments of error for this Court’s review, which we will consider
together.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED BY FAILING TO BRING APPELLANT TO
TRIAL WITHIN 90 DAYS AS REQUIRED BY O.R.C. 2945.71[](B)(2),
DENYING HIM HIS RIGHT TO A SPEEDY TRIAL GUARANTEED TO HIM
BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE I [] SECTION 10 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSE[D] IT[S] DISCRETION IN NOT GRANTING
THE MOTION TO DISMISS INDICTMENT FILED ON OCTOBER 26, 2020.
{¶5} In his assignments of error, Mr. Pedraza argues that the trial court violated his
statutory and constitutional right to a speedy trial, and that it erred by denying his post-
conviction, pro se motion to dismiss the indictment.1 We disagree.
1
The “Issue Presented for Review” under Mr. Pedraza’s first assignment of error states:
“Did the Trial Court Err by not adjudicating a motion to discharge for speedy trial violation
without first having a hearing before proceeding to trial?” The body of his assignment of error,
however, does not contain an argument regarding the trial court’s failure to conduct a hearing.
We, therefore, will not address that issue. See App.R. 16(A)(7).
3
{¶6} Mr. Pedraza’s post-conviction, pro se motion to dismiss the indictment and
discharge him based upon an alleged violation of his right to a speedy trial was, in substance, a
successive petition for post-conviction relief. See State v. Charles, 9th Dist. Lorain No.
20CA011608, 2020-Ohio-5558, ¶ 6 (explaining how courts can construe an “irregular motion” as
a petition for post-conviction relief). A trial court, however, “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, citing
R.C. 2953.23(A)(1). “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.’” (Alteration sic.) 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). A petitioner’s
failure to satisfy these requirements “deprives a trial court of jurisdiction to adjudicate the merits
of an untimely or successive postconviction petition.” State v. Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744, ¶ 36.
{¶7} Mr. Pedraza made no attempt to satisfy the requirements of Section
2953.23(A)(1). Consequently, the trial court lacked authority to entertain his successive motion
regarding the alleged violation of his right to a speedy trial, and properly denied it. Little at ¶ 9.
Mr. Pedraza’s assignments of error are overruled.
4
III.
{¶8} Mr. Pedraza’s assignments of error are overruled. The judgment of the Medina
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 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(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.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
BENJAMIN PEDRAZA, III, pro se, Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.