[Cite as State v. Hicks, 2012-Ohio-3985.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :     JUDGES:
                                               :
                                               :     Hon. Patricia A. Delaney, P.J.
       Plaintiff-Appellee                      :     Hon. Sheila G. Farmer, J.
                                               :     Hon. John W. Wise, J.
-vs-                                           :
                                               :     Case No. CT2012-0017
JOSEPH A. HICKS                                :
                                               :
                                               :
       Defendant-Appellant                     :     OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County Court
                                                   of Common Pleas, Case No. CR2010-0170



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            August 21, 2012




APPEARANCES:

For Appellant:                                       For Appellee:

JOSEPH A. HICKS, PRO SE                              D. MICHAEL HADDOX
Allen Correctional Institution                       MUSKINGUM COUNTY PROSECUTOR
Attention C-Unit
2338 North West Street                               RON WELCH
Lima, OH 45801                                       27 N. Fifth Street, Suite 201
                                                     Zanesville, OH 43701

Delaney, P.J.
       {¶1} Defendant-Appellant Joseph A. Hicks appeals the February 13, 2012

judgment entry of the Muskingum County Court of Common Pleas denying Hicks’s

Petition for Post Conviction Relief. Plaintiff-Appellee is the State of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On August 11, 2010, Hicks snatched the purse off the arm of an elderly

woman in the parking lot of a local restaurant. Hicks was indicted by the Muskingum

County Grand Jury on August 18, 2010 for one count of robbery in violation of R.C.

2911.02(A)(2), with a repeat violent offender specification under R.C. 2941.149; one

count of theft in violation of R.C. 2913.02(A)(1); and one count of theft in violation of

R.C. 2913.02(A)(1).

       {¶3} Hicks entered a guilty plea on November 1, 2010 to one count of robbery

in violation of R.C. 2911.02(A)(2), a second degree felony; one count of theft in

violation of R.C. 2913.02(A)(1), a fourth degree of felony; and one count of theft in

violation of R.C. 2913.02(A)(1), a fifth degree of felony. The trial court informed Hicks

he was subject to mandatory post release control for three years.

       {¶4} The trial court sentenced Hicks by judgment entry on December 1, 2010.

Pursuant to the plea negotiations, the State asked leave to nolle the repeat violent

offender specification to Count One of the indictment. The trial court granted the State

leave. The trial court sentenced Hicks to five years in prison on Count One, one year

in prison on Count Two, and one year in prison on Count Three. The terms were

ordered to be served concurrently. The trial court further ordered that because Hicks

was currently on postrelease control for a prior robbery conviction, the trial court

terminated Hicks’s postrelease control and reimposed the remaining twenty-three
months in prison to be served consecutively to the five-year prison sentence in the

present case.

       {¶5} Hicks filed a Notice of Appeal of the sentencing entry on October 12,

2011. Hicks filed a Motion for Leave to File a Delayed Appeal. This Court denied said

motion on November 28, 2011.

       {¶6} On February 6, 2012, Hicks filed a Petition to Vacate Judgment of

Conviction or Sentence with the trial court. The trial court denied the petition without a

hearing on February 13, 2012.

       {¶7} It is from this decision Hicks now appeals.

                             ASSIGNMENTS OF ERROR

       {¶8} Hicks raises eleven Assignments of Error:

       {¶9}     “I. THE APPELLANT HAD 23 MONTHS ADDED TO HIS PRISON

SENTENCE UNLAWFULLY.

       {¶10} “II. THE POST RELEASE CONTROL PORTION OF THE APPELANT’S

[SIC] SENTENCE HAS BEEN IMPOSED CONTRARY TO LAW.

       {¶11} “III. COUNSEL PROVIDED INEFFECTIVE ASSISTANCE FOR FAILING

TO ASSURE THAT TREATMENT FOR SUBSTANCE ABUSE BE INCLUDED IN THE

RESOLUTION OF THE CASE.

       {¶12} “IV. COSTS HAVE BEEN IMPOSED AGAINST THE APPELLANT

UNLAWFULLY.

       {¶13} “V. THE AMOUNT OF RESTITUTION ASSESSED AGAINST THE

APPELLANT IS ARBITRARY, AND HAS BEEN IMPOSED CONTRARY TO LAW.
       {¶14} “VI.    THE    FIRST     COUNT      IN    THE   INDICTMENT       IS   FATALLY

DEFECTIVE.

       {¶15} “VII. THE ‘REPEAT VIOLENT OFFENDER’ SPECIFICATION IN THE

INDICTMENT IS CONTRARY TO LAW.

       {¶16} “VIII. THE SECOND COUNT IN THE INDICTMENT IS FATALLY

DEFECTIVE.

       {¶17} “IX.    THE    THIRD COUNT          IN    THE   INDICTMENT       IS   FATALLY

DEFECTIVE.

       {¶18} “X.     COUNSEL        PROVIDED          INEFFECTIVE    ASSISTANCE        FOR

ALLOWING        THE     APPELLANT         TO     BE      SUBJECTED       TO     REPEATED

INTERROGATIONS BY THE POLICE WITHOUT COUNSEL’S PRESENCE OR

ADVICE.

       {¶19} “XI. THE APPELLANT RECEIVED ERRONEOUS INFORMATION

REGARDING JUDICIAL RELEASE THAT WAS A SIGNIFICANT FACTOR IN HIS

DECISION TO CHANGE HIS PLEA FROM ‘NOT GUILTY’ TO ‘GUILTY’ AND ENTER

INTO A PLEA AGREEMENT WITH THE STATE.”

                                         ANALYSIS

       {¶20} Before we address Hicks’s eleven Assignments of Error, we first address

the timeliness of his petition for post conviction relief.

       {¶21} Hicks was not permitted to file a delayed direct appeal of his conviction

and sentence. Hicks filed a petition for post conviction relief, which the trial court denied

without a hearing.
       {¶22} “A petition for post conviction relief is a means to reach constitutional

issues that would otherwise be impossible to reach because the evidence supporting

those issues is not contained in the record of the petitioner's criminal conviction.”

State v. Perry, 5th Dist. No.2010CA00185, 2011–Ohio–274, ¶ 12, citing State v.

Murphy, 10th Dist. No. 00AP–233, 2000 WL 1877526 (Dec. 26, 2000). “Although

designed to address claimed constitutional violations, the post-conviction relief

process is a civil collateral attack on a criminal judgment, not an appeal of that

judgment.” Id., citing State v. Calhoun, 86 Ohio St.3d 279, 281, 1999–Ohio–102, 714

N.E.2d 905; State v. Steffen, 70 Ohio St.3d 399, 410, 693 N.E.2d 67 (1994).                “A

petition for post-conviction relief, thus, does not provide a petitioner a second

opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to

an evidentiary hearing on the petition.” Id., citing State v. Jackson, 64 Ohio St.2d 107,

110, 413 N.E.2d 819 (1980); State v. Lewis, 5th Dist. No. 2007CA00358, 2008–Ohio–

3113 at ¶ 8. A court need not issue findings of fact and conclusions of law when it

dismisses an untimely petition or successive petitions for post conviction relief. State

ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002–Ohio–7042, 781 N.E.2d 155;

State ex rel. Fuller v. Sutula, 86 Ohio St.3d 301, 714 N.E.2d 924 (1999).

       {¶23} R.C. 2953.21(A)(2) provides that if no direct appeal was taken, a petition

for post conviction relief shall be filed no later than 180 days after the date on which the

time for filing an appeal expired. Hicks’s petition, filed nearly one year after the time for

appeal expired, is clearly untimely under this statute.        However, pursuant to R.C.

2953.23(A), the court may consider an untimely filed petition:
(A) Whether a hearing is or is not held on a petition filed pursuant to

section 2953.21 of the Revised Code, a court may not entertain a petition

filed after the expiration of the period prescribed in division (A) of that

section or a second petition or successive petitions for similar relief on

behalf of a petitioner unless division (A)(1) or (2) of this section applies:

       (1) Both of the following apply:

       (a) Either the petitioner shows that the petitioner was unavoidably

       prevented from discovery of the facts upon which the petitioner

       must rely to present the claim for relief, or, subsequent to the period

       prescribed in division (A)(2) of section 2953.21 of the Revised Code

       or to the filing of an earlier petition, 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.

       (b) 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 or, if the claim challenges a sentence of death that, but

       for constitutional error at the sentencing hearing, no reasonable

       factfinder would have found the petitioner eligible for the death

       sentence.

(2) The petitioner was convicted of a felony, the petitioner is an offender

for whom DNA testing was performed under sections 2953.71 to 2953.81
       of the Revised Code or under former section 2953.82 of the Revised

       Code and analyzed in the context of and upon consideration of all

       available admissible evidence related to the inmate's case as described

       in division (D) of section 2953.74 of the Revised Code, and the results of

       the DNA testing establish, by clear and convincing evidence, actual

       innocence of that felony offense or, if the person was sentenced to

       death, establish, by clear and convincing evidence, actual innocence of

       the aggravating circumstance or circumstances the person was found

       guilty of committing and that is or are the basis of that sentence of death.

       As used in this division, “actual innocence” has the same meaning as in

       division (A)(1)(b) of section 2953.21 of the Revised Code, and “former

       section 2953.82 of the Revised Code” has the same meaning as in

       division (A)(1)(c) of section 2953.21 of the Revised Code.

       {¶24} Hicks acknowledges his petition for post conviction relief is untimely. He

states that due to the uncooperative actions of his trial counsel, Hicks only recently

received the contents of his file.           Hicks requested and received copies of the

indictment and his sentencing entry from the Clerk of Courts in preparation of his

petition. A review of Hicks’ petition shows he argues ineffective assistance of counsel,

an improper sentence of an additional 23 months, improper imposition of postrelease

control, incorrect amount of restitution, improper imposition of court costs due to his

indigence, errors in the indictment, improper police questioning, and the failure of the

trial court to grant him judicial release.
       {¶25} Upon our review of the record, we find the issues raised by Hicks were

discoverable to Hicks prior to entering his pleas of guilty in this case. A review of the

“Plea of Guilty”, signed by Hicks and entered on November 1, 2010, shows the issues

that Hicks argues in his petition as being newly discovered were actually outlined

within the plea agreement.

       {¶26} Further, Hicks has not provided this Court with a transcript of the change

of plea and sentencing hearings. In Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1980), the Supreme Court of Ohio held the following: “[t]he

duty to provide a transcript for appellate review falls upon the appellant.          This is

necessarily so because an appellant bears the burden of showing error by reference

to matters in the record. See State v. Skaggs (1978), 53 Ohio St.2d 162, 372 N.E.2d

1355 (1978). Without a transcript of the proceedings, Hicks cannot demonstrate any

error or irregularity in connection with the trial court's decision. Knapp, supra.

       {¶27} Hicks finally argues his counsel provided ineffective assistance.          Our

standard of review for ineffective assistance claims is set forth in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio adopted this

standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his essential duties to the client.

If we find ineffective assistance of counsel, we must then determine whether or not the

defense was actually prejudiced by counsel's ineffectiveness such that the reliability of
the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would

have been different. Id.

       {¶28} Based on Hicks’ arguments, we cannot find there was ineffective

assistance of counsel or that the outcome of Hicks’s sentencing would have been

different.

       {¶29} Accordingly, Hicks’s eleven Assignments of Error are overruled.

                                   CONCLUSION

       {¶30} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. SHEILA G. FARMER



                                       HON. JOHN W. WISE


PAD:kgb
                 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
                          FIFTH APPELLATE DISTRICT


                                       :
STATE OF OHIO                          :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   CT2012-0017
JOSEPH A. HICKS                         :
                                        :
   Defendant - Appellant                :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. PATRICIA A. DELANEY



                                        HON. SHEILA G. FARMER



                                        HON. JOHN W. WISE
