State v. Reed , 2013 Ohio 5145 ( 2013 )

[Cite as State v. Reed, 2013-Ohio-5145.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-450
v. : (C.P.C. No. 07CR-10-7261)
John A. Reed, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 21, 2013
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.
John A. Reed, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Defendant-appellant, John A. Reed, appeals from a judgment of the
Franklin County Court of Common Pleas denying his petition for postconviction relief.
For the following reasons, we affirm.
I. BACKGROUND
{¶ 2} After a jury trial in 2008, appellant was found guilty of possession of crack
cocaine, in violation of R.C. 2925.11, with a major drug specification for possessing an
amount equal to or exceeding 100 grams. Appellant was sentenced to a total prison term
of 14 years. On appeal to this court, appellant challenged the weight and sufficiency of the
evidence supporting his conviction and argued the trial court improperly limited his
cross-examination of a witness. Rejecting appellant's arguments, this court affirmed
No. 13AP-450 2
appellant's conviction and sentence in State v. Reed, 10th Dist. No. 09AP-84, 2009-Ohio-
6900.
{¶ 3} In July 2011, appellant filed a motion to vacate sentence, arguing his
sentence was void because the statute authorizing an additional prison term for his major-
drug-offender specification was severed by the Supreme Court of Ohio in State v. Foster,
109 Ohio St. 3d 1, 2006-Ohio-856. After concluding appellant's arguments were barred by
the doctrine of res judicata because the claims were raised or could have been raised at
sentencing or in a direct appeal, the trial court denied appellant's motion to vacate
sentence. Appellant appealed to this court and argued that, because his sentence was
void, review of the same was not precluded by the doctrine of res judicata. Finding that
appellant failed to demonstrate any error, much less a "void" sentencing error, this court
affirmed the trial court's judgment denying appellant's motion to vacate sentence in State
v. Reed, 10th Dist. No. 11AP-792, 2012-Ohio-1612.
{¶ 4} On February 21, 2013, appellant filed a petition for postconviction relief,
pursuant to R.C. 2953.23, alleging ineffective assistance of trial counsel, double jeopardy
violations, Fourth Amendment violations, and sentencing issues. The trial court denied
appellant's petition on three separate grounds: (1) the petition was untimely, (2) the
issues raised were barred by the doctrine of res judicata, and (3) the arguments raised in
the petition lacked merit.
II. ASSIGNMENTS OF ERROR
{¶ 5} This appeal followed, and appellant brings three assignments of error for
our review:
I. The trial court erred when it found Appellant's post
conviction relief petition untimely.
II. The trial court abused it's [sic] discretion when it barred
review of Appellant's post conviction relief petition on the
doctrine of res judicata.
III. The trial court abused it's [sic] discretion by not
adjudicating Appellant's post conviction relief petition on the
merits of it's [sic] claims, and in finding that claims wholly
lacked merit.
No. 13AP-450 3
III. DISCUSSION
A. First Assignment of Error
{¶ 6} In his first assignment of error, appellant challenges the trial court's
determination that his postconviction petition was untimely.
{¶ 7} Pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief "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." Further, R.C. 2953.23(A)(1) provides that a court may not entertain an
untimely petition or a second petition or successive petitions unless certain conditions are
met. As recognized in State v. Martin, 10th Dist. No. 05AP-495, 2006-Ohio-4229, before
a court may consider an untimely or a second or successive petition for postconviction
relief, a petitioner must demonstrate that: " '(1) he was unavoidably prevented from
discovering the facts upon which he bases his petition, or that the petitioner's claim is
based upon a newly-created federal or state right; and (2) clear and convincing evidence
demonstrates that no reasonable factfinder would have found him guilty in the absence of
the alleged constitutional error.' " Id. at ¶ 12, quoting State v. Schoolcraft, 4th Dist. No.
05CA29, 2006-Ohio-3139, ¶ 7.
{¶ 8} A trial court's decision to deny a postconviction petition without a hearing is
reviewed under the abuse-of-discretion standard. State v. Boddie, 10th Dist. No. 12AP-
811, 2013-Ohio-3925, ¶ 11, citing State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-
6305, ¶ 14. An abuse of discretion entails a decision that is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983).
{¶ 9} The instant postconviction petition is untimely and constitutes appellant's
second request for postconviction relief. Therefore, appellant had to demonstrate that
one of R.C. 2953.23's exceptions applied before the trial court had jurisdiction to consider
his second petition. In an attempt to fall under one of those exceptions, appellant argues
the Supreme Court of the United States recently recognized a new constitutional right in
its decisions Lafler v. Cooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399
(2012).
{¶ 10} These cases do not recognize a new federal or state right that applies
retroactively to persons in appellant's situation so as to justify the filing of an untimely or
No. 13AP-450 4
successive postconviction petition. Rather, these cases "simply examined a defendant's
existing right to the effective assistance of counsel in the context of plea bargaining."
State v. Isa, 2d Dist. No. 2012-CA-44, 2013-Ohio-3382, ¶ 9, citing State v. Hicks, 8th
Dist. No. 99119, 2013-Ohio-1904; United States v. Garcia-Rodriguez, 10th Cir. No. 13-
8031 (June 19, 2013). Lafler and Frye do not create a new retroactive right, since the
Supreme Court of the United States " 'was rather explicit that it was not creating a new
right, but applying the existing right to effective assistance of counsel and test from
Strickland [v. Washington, 466 U.S. 668 (1984)].' " State v. Anderson, 11th Dist. No.
2013-T-0041, 2013-Ohio-4426, ¶ 20, quoting Hicks at ¶ 13, citing Hestle v. United States,
E.D.Mich. No. 05-40245 (Mar. 19, 2013).
{¶ 11} Because appellant has failed to establish the applicability of any exceptions
allowing for filing an untimely, successive petition for postconviction relief, the trial court
properly denied the same without a hearing as it lacked jurisdiction to review it.
Accordingly, appellant's first assignment of error is overruled.
B. Remaining Assignments of Error
{¶ 12} Our disposition of appellant's first assignment of error renders his
remaining assignments of error moot.
IV. CONCLUSION
{¶ 13} Appellant's first assignment of error is overruled, appellant's second and
third assignments of error are rendered moot, and the judgment of the Franklin County
Court of Common Pleas is hereby affirmed.
Judgment affirmed.
KLATT, P.J., and BROWN, J., concur.
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