[Cite as State v. Masters, 2013-Ohio-3147.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99219



                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  WILLIAM MASTERS
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-527719


        BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: July 18, 2013
ATTORNEY FOR APPELLANT

David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
       Joseph J. Ricotta
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, William Masters, appeals from the trial court’s decision

denying his petition for postconviction relief. For the reasons set forth below, we affirm.

                           I. Factual and Procedural History

       {¶2} On January 4, 2010, appellant pled guilty to all charges in an indictment that

charged him with 12 counts of aggravated robbery, 12 counts of kidnapping, and one

count each of disrupting public service and vandalism, all relating to his participation in

the armed robbery of a “high stakes” poker game. On April 14, 2010, the trial court

sentenced appellant to five years on each count of aggravated robbery and kidnapping,

three years on the attendant firearm specifications, and imposed the minimum sentence

for disrupting public service and vandalism. The court ordered the five years for each of

the aggravated robbery and kidnapping convictions to run concurrently with the

mandatory three years for the firearm specifications added to each base crime. Appellant

received a total eight-year prison term.

       {¶3} On May 17, 2010, appellant filed his direct appeal with this court. State v.

Masters, 8th Dist. No. 95120, 2011-Ohio-937. In his appeal, appellant argued that the

trial court erred in imposing separate sentences for his aggravated robbery and kidnapping

convictions because they were allied offenses of similar import. On March 3, 2011, this

court remanded the case to the trial court to determine whether appellant’s aggravated

robbery and kidnapping convictions should have merged. Masters at ¶ 10. On May 23,
2011, the trial court held a resentencing hearing and again sentenced appellant to an

eight-year term of imprisonment.

      {¶4} Over one year after being resentenced, appellant filed an untimely petition

for postconviction relief pursuant to R.C. 2953.23 on September 20, 2012.             In his

petition, appellant argued that he received ineffective assistance of counsel during his

plea proceedings. In his supporting affidavit, appellant alleged that defense counsel

provided ineffective assistance by: (1) failing to adequately convey a formal plea offer in

which the state agreed to recommend a six-year sentence; 1 (2) advising appellant to

cooperate with the police immediately after being charged; (3) improperly

misrepresenting his relationship with the trial court judge; and (4) failing to notify the

court that appellant was under the influence of sedative medication during the plea

hearing. On October 30, 2012, the trial court denied appellant’s petition without a

hearing.

      {¶5} Appellant now brings this timely appeal, raising two assignments of error for

review:

      I. Appellant was denied the effective assistance of defense counsel during
      his plea proceedings.

      II. The trial court erred in summarily dismissing his postconviction petition
      without according him an evidentiary hearing.




      1The   state denies making such a plea offer. Instead the state submits that
the plea offer made to defense counsel involved a recommendation of at least seven
years with discretion given to the trial court.
                                    II. Law and Analysis

                                    A. Untimely Petition

       {¶6} Although raised in appellant’s second assignment of error, we begin our

analysis by addressing his contention that the trial court erred in dismissing his petition

for postconviction relief without a hearing.

       {¶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 * * *. If

no appeal is taken * * * the petition shall be filed no later than one hundred eighty days

after the expiration of the time for filing the appeal.”

       {¶8} In the case sub judice, appellant does not dispute that his petition was filed

outside the 180-day limitation window. Appellant’s petition was, therefore, untimely.

Under R.C. 2953.23, the trial court may not entertain an untimely petition for

postconviction relief unless the petition meets the following two conditions. First, the

petitioner must demonstrate either that he was unavoidably prevented from discovering

the facts on which he relies in the petition or that the United States Supreme Court has,

since his last petition, recognized a new federal or state right that applies retroactively to

the petitioner. R.C. 2953.23(A)(1)(a). Second, the petitioner must show by clear and

convincing evidence that a reasonable factfinder would not have found him guilty but for

constitutional error at trial. R.C. 2953.23(A)(1)(b).
       {¶9} Unless the defendant makes the showings required by R.C. 2953.23(A), the

trial court lacks jurisdiction to consider either an untimely or a successive petition for

postconviction relief. State v. Carter, 2d Dist. No. 03CA-11, 2003-Ohio-4838, ¶ 13,

citing State v. Beuke, 130 Ohio App.3d 633, 720 N.E.2d 962 (1st Dist.1998).

       {¶10} In his petition for postconviction relief, appellant did not allege any new

factual evidence in his case. Rather, he contends that his petition meets the exceptions

set forth in R.C. 2953.23 based on the United States Supreme Court decisions in Lafler v.

Cooper, 566 U.S.         , 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), and Missouri v. Frye,

566 U.S.       , 132 S.Ct. 1399, 182 L.E.2d 379 (2012). Appellant argues that Lafler and

Frye collectively recognize a new retroactive right with respect to the Sixth Amendment

right to effective assistance of counsel during the plea bargaining process. He further

claims that had he been afforded effective assistance of counsel during the plea

bargaining phase, he would have accepted the state’s original plea offer and would have

received a lesser prison term.

       {¶11} However, contrary to the arguments raised in appellant’s petition, this court

recently held that Lafler and Frye did not create a new retroactive right. State v. Hicks,

8th Dist. No. 99119, 2013-Ohio-1904, ¶ 14. Thus, appellant has failed to demonstrate

that he meets one of the exceptions to the timely filing requirement set forth in R.C.

2953.23(A)(1). Accordingly, we conclude that the trial court properly denied appellant’s

request for relief without holding a hearing because it was without jurisdiction to review

the untimely petition.
       {¶12} Appellant’s second assignment of error is overruled.

                            B. Ineffective Assistance of Counsel

       {¶13} Because our resolution of appellant’s second assignment of error is based on

the trial court’s lack of jurisdiction to entertain the merits of appellant’s petition due to its

untimeliness, that issue is dispositive of this appeal.          Accordingly, the ineffective

assistance of counsel arguments raised in appellant’s first assignment of error are

rendered moot. App.R. 12(A)(1)(c).

       {¶14} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the common pleas

court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR
