State v. Glover , 2020 Ohio 6683 ( 2020 )

[Cite as State v. Glover, 2020-Ohio-6683.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-P-0003
- vs - :
RICHARD L. GLOVER, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2017 CR
00237.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
MATT LYNCH, J.
{¶1} Defendant-appellant, Richard L. Glover, appeals from the Judgment Entry
of the Portage County Court of Common Pleas, denying his motion to modify sentence.
For the following reasons, we affirm the judgment of the court below.
{¶2} On March 22, 2017, Glover was indicted by the Portage County Grand Jury
for Tampering with Evidence, a felony of the third degree, in violation of R.C.
2921.12(A)(1), and Possession of Cocaine, a felony of the fifth degree, in violation of R.C.
2925.11(A) and (C)(4)(a).
{¶3} On June 22, 2018, a change of plea hearing was held. Glover entered a
plea of guilty to Possession of Cocaine as charged in the Indictment and a nolle prosecqui
was entered on the remaining count. The trial court accepted the plea and found Glover
guilty, which was memorialized in a Judgment Entry on the same date.
{¶4} Glover filed a request for intervention in lieu of conviction on June 25, 2018,
asserting that he was eligible for intervention due to his drug/alcohol dependency. A
subsequent letter prepared by the probation department noted a prior felony conviction in
Michigan, stating that Glover “may not be eligible” for intervention in lieu of conviction.
{¶5} An Order and Journal Entry sentencing Glover was filed on September 27,
2018. The court found Glover was “not amenable to ILC.” The court placed Glover on
community control for four years.
{¶6} On December 12, 2019, Glover filed a motion to modify sentence. He
argued that the court should reconsider his eligibility for intervention in lieu of conviction.
He contended he had been found to not meet the requirements based on an alleged
felony conviction from the state of Michigan and that “subsequent investigation shows
that the conviction is for a misdemeanor and not a felony.” On December 13, 2019, the
court issued an Order and Journal Entry denying the motion without hearing.
{¶7} Glover timely appeals and raises the following assignment of error:
{¶8} “The trial court erred, as a matter of law, by denying appellant’s motion to
vacate his sentence without a hearing and without making any factual findings.”
{¶9} Glover argues the trial court erred in denying the motion without a hearing
and factual findings and that relief must be granted where a defendant is denied
intervention in lieu of conviction based upon erroneous information. No authority or
2
additional argumentation is cited in support of this proposition.
{¶10} As an initial matter, Glover argues that his motion should be construed as
a postconviction petition, although it was not characterized as one in the lower court.
“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, 882 N.E.2d 431, ¶ 12. The State, however, contends that the
motion does not satisfy the requirements for a postconviction petition and, by seeking to
modify the sentence, it is akin to a motion for reconsideration. Since Glover’s argument
is based upon his contention that he filed a postconviction petition, we will first address
whether relief is warranted when his motion is construed as such a petition.
{¶11} A convicted defendant “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,” may file a postconviction
petition “asking the court to vacate or set aside the judgment or sentence * * *.” R.C.
2953.21(A)(1)(a). A motion can be construed as a postconviction petition where it “was
filed subsequent to a direct appeal, claimed a denial of a constitutional right, sought to
render a judgment void, and asked for the vacation of the judgment and sentence.” State
v. Perry, 11th Dist. Trumbull No. 2016-T-0005, 2016-Ohio-7446, ¶ 16.
{¶12} An appellate court generally reviews a trial court’s denial of a petition
for postconviction relief under an abuse of discretion standard. State v. Barnard, 11th
Dist. Ashtabula Nos. 2018-A-0055 et al., 2019-Ohio-2283, ¶ 15. When a petition is denied
on legal grounds, such as res judicata or a finding that the petition is untimely filed, this
court conducts a de novo review. State v. Jackson, 11th Dist. Lake No. 2019-L-042,
3
2019-Ohio-4735, ¶ 11; State v. Miller, 11th Dist. Lake No. 2018-L-055, 2018-Ohio-5192,
¶ 14.
{¶13} Construed as a postconviction petition, Glover’s motion fails as untimely.
A postconviction petition filed under R.C. 2953.21(A)(1), if an appeal was not taken, “shall
be filed no later than three hundred sixty-five days after the expiration of the time for filing
the appeal.” R.C. 2953.21(A)(2). No appeal was filed and a timely appeal in this matter
would have been due by October 27, 2018. The motion to modify was filed on December
12, 2019, over a month past the 365-day deadline.
{¶14} A defendant can proceed with an untimely petition only if he demonstrates
grounds to do so under R.C. 2953.23. This necessitates showing that “he was
unavoidably prevented from discovery of the facts upon which [he] must rely to present
the claim for relief, or * * * the United States Supreme Court recognized a new federal or
state right that applies retroactively” and demonstrating “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 the petitioner was convicted,” or presenting DNA
testing that demonstrates actual innocence. R.C. 2953.23(A)(1)(a) and (b) and (2).
{¶15} No exceptions to the timeliness requirement apply here. Glover has not
shown that he was unavoidably prevented from discovering facts relating to his claim.
The level of the offense for which Glover had been convicted in Michigan should have
been readily available to counsel to review at the time the motion for intervention in lieu
of conviction was made and also should have been known to Glover. Further, no new
right applies retroactive and DNA results are clearly inapplicable to this case. Failure to
file a timely postconviction petition precludes its consideration. State v. Lett, 11th Dist.
4
Lake No. 2017-L-169, 2018-Ohio-2351, ¶ 18. As the petition was untimely, we do not
find error in the trial court failing to hold a hearing or issue findings of fact. See State v.
VanPelt, 11th Dist. Portage No. 2014-P-0058, 2015-Ohio-1070, ¶ 17 (a trial court is not
required to hold a hearing where a petition is dismissed as untimely).
{¶16} Even if the petition were timely, Glover has not alleged a constitutional
concern with his sentence or conviction. He takes issue with the fact that the court failed
to grant his request for intervention in lieu of conviction because of an allegedly mistaken
belief that he had a prior felony conviction, but does not argue how this renders the
sentence void or voidable under the constitution. Further, intervention in lieu of conviction
is permissive and an offender who is eligible for ILC does not have a legal right to it. State
v. Fontana, 11th Dist. Portage No. 2017-P-0063, 2019-Ohio-72, ¶ 18.
{¶17} Even if the motion to modify was not considered as a postconviction petition,
as is the State’s contention, it would likewise fail. Glover requested to “modify” his
sentence. This court has held that modification is not proper where a defendant has
begun to serve his sentence. State v. Archibald, 11th Dist. Lake Nos. 2014-L-005 and
2014-L-006, 2014-Ohio-4314, ¶ 21. It has further been held that motions to modify a
sentence are, in general, motions for reconsideration, which are a nullity and from which
no appeal can be maintained. State v. Berecz, 4th Dist. Washington No. 18CA5, 2018-
Ohio-2613, ¶ 7-9; State v. Cozzone, 2018-Ohio-2249, 114 N.E.3d 601, ¶ 34 (11th Dist.).
To the extent it appears Glover may have intended to seek that his sentence be vacated
since he believes he should have been granted intervention in lieu of conviction, relief
would be improper under any alternative motion. A sentence that is voidable shall be
challenged on direct appeal. State v. Walker, 11th Dist. Trumbull No. 2018-T-0024, 2018-
5
Ohio-3964, ¶ 12. Allegations that a sentence is void, although it has been held they can
be raised “at any time,” arise when the court lacked subject matter or personal jurisdiction
to sentence an offender, which was not demonstrated to be an issue in this matter. State
v. Sands, 11th Dist. Lake No. 2020-L-038, 2020-Ohio-3935, ¶ 11.
{¶18} The sole assignment of error is without merit.
{¶19} For the foregoing reasons, the judgment of the Portage County Court of
Common Pleas, denying Glover’s motion to modify sentence, is affirmed. Costs to be
taxed against appellant.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
6