State v. Lewis , 2014 Ohio 2224 ( 2014 )

[Cite as State v. Lewis, 2014-Ohio-2224.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-L-111
- vs - :
JAMES J. LEWIS, :
Defendant-Appellant. :
Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 CR 000764.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
James J. Lewis, pro se, PID: A573284, Grafton Correctional Institution, 2500 South
Avon Beldon Road, Grafton, OH 44044 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the Lake County Court of Common Pleas. Appellant
James J. Lewis filed a petition for post conviction relief due to a possible violation of
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). The trial court denied
the petition because it was not timely, and even if the petition was timely, there was no
Alleyne violation and any possible Alleyne violations were barred by res judiciata.
Lewis timely appeals. For the following reasons, we affirm.
{¶2} The facts of this case are laid out in State v. Lewis, 11th Dist. Lake No.
2009-L-138, 2010-Ohio-4288. In that decision, this court affirmed Lewis’ convictions
for operating a vehicle under the influence of alcohol, with a specification of five
previous OVI convictions and two counts of aggravated vehicular assault. On January
19, 2011, the Supreme Court of Ohio declined jurisdiction over Lewis’ appeal to that
court.
{¶3} On August 26, 2013, Lewis filed a pro se motion for post conviction relief.
In that motion he argued that Alleyne retroactively applied to his case. According to
Lewis, at sentencing, the trial court made various findings required under R.C. 2929.14
to impose non-minimum consecutive sentences. He also claims the facts supporting
these findings were never presented to the jury. Finally, he asserts that Alleyne
requires the jury to make the requisite findings to support a sentencing enhancement
under R.C. 2929.14.1 On October 7, 2013 the trial court denied the petition. This
appeal followed.
{¶4} As Lewis’ assignments of error are intertwined, we will consolidate them in
our review. In his two assignments of error, Lewis asserts that:
{¶5} “Whether a petition for post conviction relief asserting a claim of error
under Alleyne v. United States, 131 S. Ct. 2151, 2013 U.S. Lexis 4543 (2013) relies on
a ‘“new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court,”’ within the meaning of O.R.C. §2953.21, O.R.C. §2953.23.
{¶6} “Whether the new rule of constitutional law announced by [the] United
States Supreme Court in Alleyne v. United States 131 S. Ct. 2141, 2013, U.S. Lexis
1. Lewis does not specify the findings the sentencing judge made that a jury had to determine in his
particular case, and our review of the sentencing entry does not reveal that the sentencing judge made
findings pursuant to R.C. 2929.14. Because resolution of this issue is immaterial to our decision, we
decline to speculate as to what Lewis is referencing.
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4542 (2012), was made retroactively applicable to petitioners seeking collateral review
of their convictions.”
{¶7} Although Lewis has narrowly styled his assignments of error, Lewis
essentially advances the same arguments to us as he did to the trial court. Because
courts should read pro se pleadings liberally, we will not confine ourselves solely to the
issues raised in Lewis’ assignments of error. Rosen v. Chesler, 9th Dist. Lorain No.
08CA009419, 2009-Ohio-3163, ¶12, quoting Sherlock v. Myers, 9th Dist. Summit No.
22071, 2004-Ohio-5178, ¶3. The state claims that Lewis is untimely with his petition
and that in any event Alleyne is not retroactively applicable to those who seek post
conviction relief.
{¶8} When a petition for post conviction relief is dismissed without a hearing,
we use a de novo standard of review. State v. Johnson, 5th Dist. Guernsey No. 12 CA
19, 2013-Ohio-1398, ¶27. R.C. 2953.21(A)(2) requires that post conviction relief
petitions 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.” The transcript was filed with this court on November 20, 2009. Neither
party contests that the 180 day window expired when Lewis filed this petition.
Therefore, in order for the petition to be timely, an exception to the 180 day window
must apply.
{¶9} R.C. 2953.23(A)(1) provides an exception for untimely post conviction
relief petitions. It requires that a petitioner meet both parts of a two-prong test. The
first prong requires that the petitioner was “unavoidably prevented from discovery of the
facts upon which the petitioner must rely to present the claim for relief” or, after the 180
day window to present a petition expired, “the United States Supreme Court recognized
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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.” R.C. 2953.23(A)(1)(a).
The second prong requires that, in non-death penalty cases, 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 of which the petitioner
was convicted.” R.C. 2953.23(A)(1)(b).
{¶10} Neither party disputes that Lewis does not meet the first option in the first
prong. As such, we will only concern ourselves with the second element of the first
prong. To better understand our decision on the retroactivity of Alleyne, a brief history
of its relationship to Apprendi is in order. In Apprendi v. New Jersey, 530 U.S. 466(2000), the U.S. Supreme Court held that if finding a particular fact increased the
maximum sentence that could be imposed on the defendant, then this fact is an
element of the offense that must be submitted to the jury. Id. at 483, fn. 10, 490.
Consequently, the Supreme Court found that Apprendi’s sentence has been
unconstitutionally raised by a judge’s finding that, based on a preponderance of the
evidence, Apprendi’s crime was racially motivated. Id. at 470, 491-92. In Harris v.
United States, 536 U.S. 545 (2002), the Supreme Court declined to apply Apprendi to
situations where a judge makes a factual finding that raises the minimum possible
sentence, but does not raise the statutory maximum. In Alleyne, the Supreme Court
overturned Harris. Alleyne, 133 S. Ct. at 2155. Therefore, findings of fact that increase
the defendant’s minimum possible sentence or raise an individual’s maximum possible
sentence now must be submitted to the jury to comply with the Sixth Amendment.
{¶11} Lewis does not submit any authority to us indicating that Alleyne should
be retroactively applied. Accordingly, we conclude that Lewis cannot meet the
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alternate part of the first prong, and therefore, his petition is not timely and without
merit. As the Seventh Circuit succinctly explained:
{¶12} “The declaration of retroactivity must come from the Justices. See Dodd
v. United States, 545 U.S. 353, 125 S. Ct. 2478, 162 L. Ed. 2d 343 (2005); Tyler v.
Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001). The Court resolved
Alleyne on direct rather than collateral review. It did not declare that its new rule
applies retroactively on collateral attack.
{¶13} “Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000). The Justices have decided that other rules based
on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin,
542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). This implies that the Court
will not declare Alleyne to be retroactive. See also Curtis v. United States, 294 F.3d
841 (7th Cir. 2002) (Apprendi itself is not retroactive). But the decision is the Supreme
Court's, not ours, to make. Unless the Justices themselves decide that Alleyne applies
retroactively on collateral review, we cannot authorize a successive collateral attack
based on §2255(h)(2) or the equivalent rule for state prisoners, 28 U.S.C.
§2244(b)(2)(A).” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
{¶14} Accordingly, the assignments of error are without merit. The judgment of
the trial court is affirmed.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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