[Cite as State v. Thompson, 2015-Ohio-5102.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 15 CAA 09 0067
ZACHARY D. THOMPSON

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Caes No. 08CR I 08 0407


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        December 7, 2014



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         ZACHARY D. THOMPSON, PRO SE
COUNTY PROSECUTOR'S OFFICE                     15708 McConnelsville Road
140 North Sandusky Street, 3rd Floor           Caldwell, Ohio 43724
Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 09 0067                                                  2

Wise, J.

       {¶1}   Defendant-Appellant Zachary Thompson appeals the August 18, 2015,

Judgment Entry of the Delaware County Court of Common Pleas denying his petition for

post-conviction relief.

       {¶2}   Plaintiff-Appellee is the State of Ohio.

                                  STATEMENT OF THE CASE

       {¶3}   On December 1, 2009, Appellant entered a plea of guilty to two counts of

aggravated vehicular homicide, in violation of R.C. §2903.06(A)(1)(a) and R.C.

§2903.06(A)(2)(a).

       {¶4}   On January 27, 2010, the trial court sentenced Appellant to five (5) years in

prison, the first two years being mandatory, on each of the two counts, the sentences to

be served consecutively. The trial court further ordered Appellant pay costs and restitution

in the sum of $11,466.29. In addition, Appellant’s driver’s license was suspended for life.

       {¶5}   The State appealed, assigning as error:

       {¶6}   “I. THE SENTENCE OF FIVE YEARS WITH ONLY TWO YEARS BEING

MANDATORY FOR EACH COUNT OF AGGRAVATED VEHICULAR HOMICIDE

IMPOSED CONSECUTIVELY BY THE TRIAL JUDGE WAS UNLAWFUL AND VOID

BECAUSE R.C. 2903.06(E) REQUIRES THE ENTIRE PRISON TERM TO BE

MANDATORY.”

       {¶7}   Defendant-Appellant, cross-appealed, assigning as error:

       {¶8}   “THE CONSECUTIVE SENTENCES IMPOSED UPON APPELLEE WERE

CONTRARY TO LAW AS THE TRIAL COURT FAILED TO MAKE THE REQUISITE

FINDINGS UNDER O.R.C. §2929.14(E).”
Delaware County, Case No. 15 CAA 09 0067                                                 3


       {¶9}    This Court overruled both the State’s and the Defendant’s assignments of

error and affirmed the trial court’s decision.

       {¶10} On May 28, 2013, Appellant filed a Motion to Withdraw Guilty Pleas.

       {¶11} On June 11, 2013, the State filed a Memorandum Contra.

       {¶12} On August 15, 2013, Appellant filed a Response and a Motion: Submitting

Evidence to Supplement Defendant’s Motion to Withdraw Guilty Pleas.

       {¶13} By Judgment Entry filed March 14, 2014, the trial court denied Appellant’s

motion.

       {¶14} Appellant filed an appeal to this Court, Case No. 14 CAA 04 0021,

challenging the trial court’s denial of his motions to withdraw his guilty plea and raising

claims of ineffective assistance of counsel. By Opinion and Entry dated January 13, 2015,

this Court affirmed the trial court’s denials of Appellant’s motions.

       {¶15} On March 9, 2015, Appellant filed another motion to withdraw his guilty plea,

pro se.

       {¶16} On March 11, 2015, Appellant filed a motion to re-open his appeal, which

was denied by this Court.

       {¶17} On March 12, 2015, the trial court denied Appellant’s motion to withdraw his

guilty plea.

       {¶18} On June 1, 2015, Appellant filed a Notice of Appeal with the Ohio Supreme

Court requesting that it accept jurisdiction to hear his appeal.

       {¶19} On July 27, 2015, Appellant filed a petition for post-conviction relief.

       {¶20} On August 18, 2015, the trial court denied Appellant’s petition for post-

conviction relief.
Delaware County, Case No. 15 CAA 09 0067                                           4


      {¶21} On August 26, 2015, the Ohio Supreme Court declined to accept

Appellant’s appeal.

      {¶22} Appellant now appeals, assigning the following error for review:

                                ASSIGNMENTS OF ERROR

      {¶23} “I. DEFENDANT THOMPSON ENTERED HIS PLEAS AS A RESULT OF

HIS BEING INDUCED INTO PLEADING GUILTY BY DEFENSE COUNSEL; THE PLEA

THEREFORE WAS NOT VOLUNTARY AND KNOWINGLY ENTERED.

      {¶24} “II. TRIAL COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION WHEN HE

ADVISED THE DEFENDANT TO PLEAD GUILTY AND REPRESENTED TO

DEFENDANT HE WOULD RECEIVE A 5 YEAR PRISON TERM; THE DEFENDANT

WAS PREJUDICED BY SUCH REPRESENTATION WHEN THE TRIAL COURT

IMPOSED A 10 YEAR SENTENCE.

      {¶25} “III. THE DEFENDANT’S GUILTY PLEA WAS INVALID AND VIOLATIVE

OF THE DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS

THE COURT FAILED TO DETERMINE THAT THE PLEA WAS MADE FREE OF ANY

PROMISES OR OTHER INDUCEMENTS.

      {¶26} “IV. THE TRIAL COURT ERRED IN DISMISSING THE PETITION

WITHOUT      HAVING     AN    EVIDENTIARY      HEARING       ON    THE    ISSUE   OF

VOLUNTARINESS OF THE GUILTY PLEA AND ON THE ISSUE OF THE FAILURE OF

APPELLANT [SIC] [TRIAL] COUNSEL TO PROVIDE COMPETENT LEGAL ADVICE.

      {¶27} “V. IT CONSTITUTED ERROR FOR THE COURT BELOW TO APPLY THE

WRONG STANDARD OF PROOF.
Delaware County, Case No. 15 CAA 09 0067                                                     5


       {¶28} “VI. TRIAL COURT ERROR [SIC] WHEN IT HELD IT LACK [SIC]

JURISDICTION TO ENTERTAIN A [SIC] UNTIMELY PETITION WHEN APPELLANT’S

CONVICTION AND SENTENCE IS VOID.”

                                              I., II., III.

       {¶29} In his first three Assignments of Error, Appellant argues that the trial court

erred in denying his motions to withdraw his guilty pleas. More specifically, Appellant

argues that his trial counsel was ineffective and that his guilty pleas were not made

voluntarily.

       {¶30} Upon review, this Court finds that the issues set forth in these assignments

of error were raised in Appellant’s prior appeal. This Court has therefore previously

considered these arguments and found them to be not well-taken.

       {¶31} Accordingly, we find that the claims in these assignments of error are barred

by the doctrine of res judicata.

       {¶32} Appellant’s Assignments of Error I, II, and III are overruled.

                                             IV., V., VI.

       {¶33} In his Fourth, Fifth and Sixth Assignments of Error, Appellant argues that

the trial court abused its discretion in denying his petition for post-conviction relief. We

disagree.

       {¶34} Appellant contends that the trial court erred by denying his motion without

conducting an evidentiary hearing. We apply an abuse of discretion standard when

reviewing a trial court's decision to deny a post-conviction relief petition without a hearing.

State v. Holland, 5th Dist. Licking No. 12–CA–56, 2013–Ohio–905. An abuse of discretion

connotes more than an error of law or judgment; it entails a decision that is unreasonable,
Delaware County, Case No. 15 CAA 09 0067                                                     6

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d

1140 (1983).

       {¶35} Under R.C. §2953.21, a petitioner seeking post-conviction relief is not

automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279, 714

N.E.2d 905 (1999). The Ohio Supreme Court has held that the proper basis for dismissing

a petition for post-conviction relief without holding an evidentiary hearing includes: (1) the

failure of the petitioner to set forth sufficient operative facts to establish substantive

grounds for relief, and (2) the operation of res judicata to bar the constitutional claims

raised in the petition. Id.; State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784 (1994). In

this case, the record reflects that Appellant failed to submit any supporting affidavits or

other evidentiary documents containing sufficient operative facts to support any of the

claims presented.

       {¶36} Further, under the doctrine of res judicata, a defendant who was

represented by counsel is barred from raising an issue in a petition for post-conviction

relief if the defendant raised or could have raised the issue at trial or on direct appeal.

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. Szefcyk, 77 Ohio St.3d

93, 1996–Ohio–337, 671 N.E.2d 233.

       {¶37} The allegations Appellant makes in his petition could all have been raised

or were raised in his direct appeal. Therefore, the trial court did not abuse its discretion in

overruling Appellant's motion without a hearing.

       {¶38} Finally, Appellant's petition for post-conviction relief should have been

denied or dismissed without a hearing because it was filed well beyond the time limits set

by R.C. §2953.21.
Delaware County, Case No. 15 CAA 09 0067                                                    7


       {¶39} R.C. §2953.21 requires that a petition for post-conviction relief be filed no

later than three hundred sixty five 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. In this case, the

transcript was filed with this Court on March 22, 2010, therefore requiring his petition to

be filed no later than March 22, 2011. Appellant has made no attempt to show that any of

the exceptions to R.C. §2953.23(A)(1) applies to his untimely motion.

       {¶40} When a petition for post-conviction relief is filed untimely and does not meet

the requirements of R.C. §2953.23(A)(1), a trial court lacks jurisdiction to entertain the

merits of the petition or hold a hearing. State v. Lynn, 5th Dist. Muskingum No. CT2007–

0046, 2008–Ohio–2149. Accordingly, the trial court did not err in failing to conduct an

evidentiary hearing on the motion as it was untimely filed. Id.

       {¶41} Appellant’s Fourth, Fifth and Sixth Assignments of Error are overruled.

       {¶42} For the foregoing reasons, the decision of the Court of Common Pleas of

Delaware County, Ohio, is affirmed.


By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.




JWW/d 1119
