[Cite as State v. Hudson, 2017-Ohio-4280.]
                          STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO                                )    CASE NO. 16 JE 0007
                                             )
        PLAINTIFF-APPELLEE                   )
                                             )
VS.                                          )    OPINION
                                             )
DAVID LEE HUDSON                             )
                                             )
        DEFENDANT-APPELLANT                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from the Court of
                                                  Common Pleas of Jefferson County,
                                                  Ohio
                                                  Case No. 87 CR 73

JUDGMENT:                                         Affirmed.

APPEARANCES:

For Plaintiff-Appellee:                           Atty. Jane M. Hanlin
                                                  Prosecuting Attorney
                                                  Jefferson County Justice Center
                                                  16001 State Route 7
                                                  Steubenville, Ohio 43952
                                                  No Brief Filed

For Defendant-Appellant:                          David Lee Hudson, Pro se
                                                  #207-355
                                                  Marion Correctional Institution
                                                  940 Marion-Williamsport Road
                                                  P. O. Box 57
                                                  Marion, Ohio 43302


JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Carol Ann Robb
                                                  Dated: June 12, 2017
[Cite as State v. Hudson, 2017-Ohio-4280.]
WAITE, J.


         {¶1}    Appellant David Lee Hudson appeals a February 19, 2016 Jefferson

County Common Pleas Court decision to deny his “motion to correct sentence.”

Appellant argues that the trial court improperly denied his motion without making the

requisite findings of fact.        Appellant further argues that the trial court abused its

discretion when it denied his motion.             For the reasons provided, Appellant’s

arguments are without merit and the judgment of the trial court is affirmed.

                                 Factual and Procedural History

         {¶2}    On November 15, 1987, Appellant and his three codefendants devised

a plan to rob and murder the victim. The men drove to the victim’s house and lured

him into Appellant’s car by telling him that his best friend had been shot. The men

drove the victim to a remote area in Jefferson County where the victim was beaten,

stabbed, shot, and killed. Appellant was apprehended two weeks later in San Diego,

California.

         {¶3}    On January 15, 1988, Appellant was indicted on two counts of

aggravated murder with specifications, one count of aggravated robbery with a

firearm specification, and one count of aggravated kidnapping with a firearm

specification.      Appellant’s codefendants were tried separately.         Following trial

Appellant was convicted on all counts and the jury recommended a sentence of

death.     Appellant filed a direct appeal with this Court and challenged both his

convictions and his sentence.

         {¶4}    On appeal, we affirmed Appellant’s conviction and sentence in part and

reversed in part. State v. Hudson, 7th Dist. No. 88-J-40, 1993 WL 181334 (May 28,
                                                                                      -2-

1993) (“Hudson I”). Specifically, we vacated one of Appellant’s aggravated murder

convictions after finding that he could not be convicted on two counts of aggravated

murder when there was only one victim. We also vacated Appellant’s aggravated

robbery conviction due to insufficient evidence. We determined that Appellant could

not be sentenced to death on a sole aggravated murder conviction and remanded the

matter for an appropriate sentence.

      {¶5}   On January 13, 1994, the trial court resentenced Appellant by means of

a nunc pro tunc entry. Appellant was sentenced to life in prison without the possibility

of parole for thirty years, to be served consecutively with a three-year accompanying

firearm specification conviction. He was also sentenced to ten-to-twenty years for the

aggravated    kidnapping   conviction,   to   run   consecutively   with   a   three-year

accompanying firearm specification.       The aggravated murder and aggravated

kidnapping sentences were ordered to run consecutively. The entry clarified that

Appellant would not be sentenced on count two, the second aggravated murder

charge, or count four, aggravated robbery.

      {¶6}   Appellant filed a second appeal where he contested the trial court’s

ability to impose consecutive sentences when the offenses were part of the same act

or transaction. We affirmed the trial court’s sentence in State v. Hudson, 7th Dist.

No. 94-J-10, 1994 WL 715648 (Dec. 20, 1994) (“Hudson II”).

      {¶7}   On February 3, 2016, Appellant filed a “motion to correct sentence” with

the trial court. In his motion, Appellant argued that his sentence contains an error

that would render his sentence contradictory. Appellant contends he was given the
                                                                                        -3-

possibility of parole after serving thirty years. However, the trial court ordered his

sentences to run concurrently, for an aggregate total of at least forty-six years. As a

result, he argues that he is not truly eligible for parole until he serves forty-six years,

contrary to the sentence the court imposed for his aggravated murder conviction. On

February 19, 2016, the trial court summarily denied the motion. Appellant timely

appeals. The state failed to file a response brief. As Appellant’s two assignments of

error are related, they will be jointly addressed.

                           ASSIGNMENT OF ERROR NO. 1

       TRIAL     COURT     ABUSED       DISCRETION       WHEN       IMPROPERLY

       DENYING MOTION TO CORRECT SENTENCE WITHOUT FILING

       FACT FINDINGS AS REQUIRED.

                           ASSIGNMENT OF ERROR NO. 2

       TRIAL COURT ABUSED DISCRETION WHEN DENYING MOTION TO

       CORRECT SENTENCE WHEN IT IS MANDATED TO CORRECT ANY

       ERROR IN THE JUDGMENT ENTRY.

       {¶8}    Appellant contends that a trial court must make findings of fact and

conclusions of law before entering judgment on a postconviction petition. Because

the trial court failed to make these findings, Appellant argues that the matter should

be reversed and remanded with instructions ordering the trial court to make the

requisite findings.

       {¶9}    A motion to correct a sentence meets the definition of a postconviction

petition if “it is a motion that (1) was filed subsequent to [the defendant’s] direct
                                                                                     -4-

appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment

void, and (4) asked for vacation of the judgment and sentence.” State v. Reynolds,

79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Appellant’s motion meets this

criteria, as his motion was filed subsequent to his direct appeal, claims that his

sentence is void, and asks for the sentence to be vacated.

      {¶10} However, a trial court is not required to make findings of fact or

conclusions of law if a postconviction petition is untimely. State ex rel. George v.

Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, 889 N.E.2d 533, ¶ 6, citing State ex

rel. Bunting v. Haas, 102 Ohio St.3d 161, 2004-Ohio-2055, 807 N.E.2d 359; State ex

rel. Ashipa v. Kubicki, 114 Ohio St.3d 459, 2007-Ohio-4563, 872 N.E.2d 1235, ¶ 4.

      {¶11} Pursuant to R.C. 2953.21(A)(2), a postconviction petition “shall 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.”

Ohio law provides a two-part exception to this rule if the petitioner can demonstrate

that he meets the criteria found in R.C. 2953.23(A)(1)(a), (b). R.C. 2953.23(A)(1)(a)

mandates that the petitioner must either show that he:

      was unavoidably prevented from discovery of the facts upon which [he]

      must rely to present the claim for relief, or, * * * 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.
                                                                                     -5-

      {¶12} Here, Appellant’s motion was filed approximately twenty-two years after

his last direct appeal. He has provided no argument to demonstrate that he falls

under the exception found in R.C. 2953.23(A)(1)(a),(b). As such, even if the motion

qualified as a postconviction petition, it was untimely and the trial court was not

required to make any findings of fact or conclusions of law.

      {¶13} In addition to his procedural arguments, Appellant claims that the trial

court abused its discretion in making its decision. Although the trial court’s denial of

Appellant’s motion is limited to a few sentences, it is apparent from the judgment

entry that the trial court did consider the merits of Appellant’s arguments.          A

postconviction petition is reviewed for an abuse of discretion. State v. Shaw, 7th

Dist. No. 137, 2014-Ohio-5633, ¶ 17, citing State v. Davis, 133 Ohio App.3d 511, 728

N.E.2d 1111 (8th Dist.1999); State v. West, 7th Dist. No. 07 JE 26, 2009-Ohio-3347.

      {¶14} The crux of Appellant’s argument is that the consecutive nature of his

sentences resulted in a contradictory sentence. At the time of Appellant’s conviction,

consecutive sentences were permitted so long as the court specified that it was

ordering the sentences to run consecutively. R.C. 2929.41(B). Although there were

limitations placed on consecutive sentences, those limits did not apply when a

defendant was convicted of aggravated murder. State v. Elam, 68 Ohio St.3d 585,

586, 629 N.E.2d 442 (1994). As Appellant was convicted of aggravated murder,

pursuant to the law that was in effect at that time, imposition of consecutive

sentences for aggravated murder and aggravated kidnapping convictions were

permissible.
                                                                                     -6-

       {¶15} We have previously addressed whether the imposition of consecutive

sentences for Appellant’s firearm specifications was proper in Hudson II. While we

did not specifically conclude that the consecutive sentences for the firearm

specifications was appropriate, we quoted the former R.C. 2929.71(B), which was in

effect at the time of Appellant’s conviction:

       If an offender is convicted of, or pleads guilty to, two or more felonies

       and two or more specifications charging him with having a firearm on or

       about his person or under his control while committing the felonies,

       each of the three-year terms of actual incarceration imposed pursuant

       to this section shall be served consecutively with, and prior to, the life

       sentences or indefinite terms of imprisonment imposed pursuant to

       section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code,

       unless any of the felonies were committed as part of the same act or

       transaction. If any of the felonies were committed as part of the same

       act or transaction, only one three-year term of actual incarceration shall

       be imposed for those offenses, which three-year term shall be served

       consecutively with, and prior to, the life sentences or indefinite terms of

       imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.11

       of the Revised Code.

Hudson II at *3, citing former R.C. 2929.71(B).         As noted in the former R.C.

2929.71(B), multiple firearm specifications shall be served consecutively and prior to

a life sentence or indefinite term when each felony constitutes a separate act. In
                                                                                        -7-

Hudson II, we determined that the kidnapping and murder were not part of the same

transaction. Pursuant to the former R.C. 2929.71(B), the trial court was required to

run the firearm specifications prior to and consecutive to the life sentence for the

murder conviction and the indefinite sentence on the kidnapping conviction.

       {¶16} Although the consecutive sentences in this case essentially remove the

possibility of parole after Appellant served thirty years of incarceration, the trial court

properly imposed consecutive sentences pursuant to the law. There was no abuse of

discretion in the trial court’s determination, here. Appellant’s arguments are without

merit and the judgment of the trial court is affirmed.

                                       Conclusion

       {¶17} Appellant argues that the trial court improperly denied his motion to

correct sentence without making the requisite findings of fact. However, the trial

court was not required to make such findings. Appellant also argues that the trial

court abused its discretion when it denied his motion to correct his sentence.

Pursuant to Hudson II, the imposition of consecutive sentences was proper.

Accordingly, Appellant’s arguments are without merit and the judgment of the trial

court is affirmed.


Donofrio, J., concurs.

Robb, P.J., concurs.
