[Cite as State v. Wood, 2014-Ohio-3966.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                        Court of Appeals No. L-14-1114

        Appellee                                     Trial Court No. CR0200502762

v.

Jeffrey Wood                                         DECISION AND JUDGMENT

        Appellant                                    Decided: September 12, 2014


                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Jeffrey Wood, pro se.

                                              *****

        YARBROUGH, P.J.

                                           I. Introduction

        {¶ 1} On October 31, 2005, appellant pleaded no contest to two counts of gross

sexual imposition and two counts of rape involving a juvenile. He was found guilty and

sentenced to 26 years in prison. In imposing the sentence, the trial court relied on
sentencing statutes that required judicial fact-finding for the imposition of non-minimum

and consecutive sentences. Appellant appealed his sentence. During the pendency of the

appeal, those statutes were ruled unconstitutional by State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470. Consequently, this court reversed based on the trial

court’s reliance on the excised statutes, and remanded the matter for resentencing. State

v. Wood, 6th Dist. Lucas No. L-05-1420, 2006-Ohio-4910. On remand, the trial court

resentenced appellant to 26 years in prison, this time without making the formerly

required statutory findings. Appellant again appealed, and in State v. Wood, 6th Dist.

Lucas No. L-07-1123, 2008-Ohio-79, we affirmed.

       {¶ 2} Five years later, on March 12, 2013, appellant filed a “Supplemental Brief in

support of resentencing” in which he argued that he was entitled to resentencing in

accordance with H.B. 86. Thereafter, on February 4, 2014, appellant filed a “Motion for

Resentencing” in which he sought to clarify his initial filing. In the motion for

resentencing, appellant argued that his motion was not a postconviction petition because

in it he argued that his sentence was void ab initio for failing to follow the sentencing

requirements as written. He contended that he had a liberty interest in receiving

minimum, concurrent sentences unless the trial court made the appropriate factual

findings. The state opposed both motions.

       {¶ 3} The trial court, on April 25, 2014, entered its judgment denying appellant’s

motions. The court construed appellant’s motions as petitions for postconviction relief,

and determined that they were untimely and not subject to any exception.




2.
       {¶ 4} Appellant has appealed the trial court’s April 25, 2014 judgment, and now

raises the following assignment of error for our review:

              1. TRIAL COURT ABUSED DISCRETION WHEN DENYING

       ACTION WHEN R.C. 2953.23 PERMITS REVIEW OF PETITION FOR

       POSTCONVICTION RELIEF HEARING AFTER DEADLINE

       REQUIREMENT PURSUANT TO R.C. 2953.21.

                                           II. Analysis

       {¶ 5} In his appeal, appellant appears to concede that his motions were properly

construed as postconviction petitions. “Where 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 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, 679 N.E.2d 1131 (1997), syllabus. Here, appellant’s motions were filed after

his direct appeal and sought to vacate his sentence on the grounds that his liberty interests

were violated when the trial court failed to follow the sentencing laws. Thus, his motions

are petitions for postconviction relief.

       {¶ 6} We review a trial court’s decision granting or denying a postconviction

petition for an abuse of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 58. An abuse of discretion connotes that the trial court’s attitude

is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219, 450 N.E.2d 1140 (1983).




3.
          {¶ 7} 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.” R.C. 2953.21(A)(2). Here, the trial

transcripts were filed in 2006. Thus, appellant’s petition is well beyond the 180-day

statutory time limit.

          {¶ 8} A trial court “may not entertain” an untimely petition for postconviction

relief unless the untimeliness is excused. R.C. 2953.23(A). Under R.C. 2953.23(A)(1),

the time limit is excused if both (1) it can be shown that either the petitioner was

unavoidably prevented from discovering the facts relied on in the claim for relief, or that

the United States Supreme Court recognized 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; and (2) the petitioner presents clear and convincing evidence that, but for

the constitutional error at trial, no reasonable fact-finder would have found the petitioner

guilty.

          {¶ 9} In his attempt to satisfy R.C. 2953.23(A)(1), appellant argues that the facts

he was prevented from discovering were “[his] transcripts and the information provided

at Trial.” Notably, appellant does not argue that the United States Supreme Court has

recognized a new federal or state right, or that, but for the constitutional error, no

reasonable fact-finder would have found him guilty. Instead, appellant states only that

his sentence is contrary to law, and that no fact finder with the sentencing provisions as

prescribed would have been able to lawfully sentence him to the sentence he received.




4.
       {¶ 10} We are not persuaded by appellant’s arguments. First, as the state points

out, appellant cannot claim that he was prevented from discovering facts from the

sentencing hearing at which he was present. Second, appellant has identified no new

federal or state right that has been recognized by the United States Supreme Court.

Indeed, his arguments center on the application of Ohio sentencing law, which the trial

court properly applied based on the current law at the time.1 Finally, appellant has not

shown through clear and convincing evidence that, but for the constitutional error, no

reasonable fact-finder would have found him guilty. Therefore, we hold that the trial

court did not abuse its discretion in not considering appellant’s untimely postconviction

petition.

       {¶ 11} Accordingly, appellant’s sole assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 12} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

                                                                       Judgment affirmed.




1
  Appellant references at several points in his postconviction petitions that he remembers
that our court reversed his initial sentence because the findings made by the trial court did
not warrant the imposition of consecutive sentences. A plain reading of our decision in
State v. Wood, 6th Dist. Lucas No. L-05-1420, 2006-Ohio-4910, reveals that appellant’s
view is patently inaccurate.



5.
                                                               L-14-1114
                                                               State of Ohio v. Wood




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, P.J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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