[Cite as State v. Lee, 2018-Ohio-3715.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                              CRAWFORD COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 3-18-14

        v.

ROBERT J. LEE,                                            OPINION

        DEFENDANT-APPELLANT.




                Appeal from Crawford County Common Pleas Court
                            Trial Court No. 09 CR 169

                                      Judgment Affirmed

                          Date of Decision:   September 17, 2018




APPEARANCES:

        Robert J. Lee, Appellant

        Matthew E. Crall for Appellee
Case No. 3-18-14


PRESTON, J.

       {¶1} Defendant-appellant, Robert J. Lee (“Lee”), pro se, appeals the May 17,

2018 judgment entry of the Crawford County Court of Common Pleas denying his

petition for post-conviction relief. For the reasons that follow, we affirm.

       {¶2} In January 2010, Lee was convicted of five counts: Count One of

aggravated burglary in violation of R.C. 2911.11(A)(1), a first-degree felony, Count

Two of aggravated robbery in violation of R.C. 2911.01(A)(3), a first-degree felony,

Count Three of felonious assault in violation of 2903.11(A)(1), a second-degree

felony, Count Four of breaking and entering in violation of R.C. 2911.13(A), a fifth-

degree felony, and Count Five of aggravated robbery in violation of R.C.

2911.01(A)(1), a first-degree felony. (See Doc. Nos. 1, 12, 21). See also State v.

Lee, 190 Ohio App.3d 581, 2010-Ohio-5672, ¶ 10 (3d Dist.), judgment vacated in

part, sub nom. State v. Stall, 128 Ohio St.3d 501, 2011-Ohio-1960. On April 5,

2010, the trial court sentenced Lee to 10 years in prison on Count One, 10 years in

prison on Count Two, 8 years in prison on Count Three, 12 months in prison on

Count Four, and 10 years in prison on Count Five, to be served consecutively for an

aggregate term of 39-years imprisonment. (Doc. No. 21).

       {¶3} On April 27, 2010, Lee appealed the trial court’s judgment entry of

sentence. (Doc. No. 27). See Lee at ¶ 14-15. In that direct appeal, we affirmed the

judgment of the trial court. Lee at ¶ 35. Lee then appealed this court’s decision to


                                         -2-
Case No. 3-18-14


the Supreme Court of Ohio. Stall at ¶ 2.1 However, the Supreme Court of Ohio

declined jurisdiction over Lee’s appeal. Id.

        {¶4} On April 30, 2018, Lee filed a petition for post-conviction relief arguing

that, in light of the Supreme Court of Ohio’s decision in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, the trial court erred by determining that Counts One,

Two, and Three did not merge for purposes of sentencing. (Doc. No. 35). On May

17, 2018, the trial court denied Lee’s petition. (Doc. No. 37).

        {¶5} On June 18, 2018, Lee filed a notice of appeal. (Doc. No. 38). He raises

one assignment of error.

                                       Assignment of Error

        The Courts erred in failing to hold that offenses of Aggravated
        Robbery O.R.C. 2911.01(A)(3), Aggravated Burglary O.R.C.
        2911.11(A)(1) & Felonious Assault O.R.C. 2903.11(A)(1) were
        allied offenses of similar import O.R.C. 2941.25(A).

        {¶6} Although Lee does not explicitly argue in his appellate brief that the

trial court committed any reversible error by denying his petition for post-conviction

relief, his arguments in support of his assignment of error are nearly identical to

those he made in his petition for post-conviction relief. Therefore, we will treat




1
 In Lee, we partially reversed the sentence of one of Lee’s codefendants, Malcolm Stall. 190 Ohio App.3d
581, 2010-Ohio-5672, at ¶ 33-35. The State then appealed our decision as to Stall’s sentence to the Supreme
Court of Ohio. See Stall, 128 Ohio St.3d 501, 2011-Ohio-1960, at ¶ 1. Lee’s appeal of this court’s decision
affirming his sentence was filed as a cross-appeal in Stall. See id. at ¶ 2.

                                                   -3-
Case No. 3-18-14


Lee’s assignment of error as alleging that the trial court erred by denying his petition

for post-conviction relief.

       {¶7} “R.C. 2953.21 governs petitions for post-conviction relief.” State v.

Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing State v. Kinstle,

3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets forth who may

petition for post-conviction relief:

       Any person who has been convicted of a criminal offense * * * and

       who claims that there was such a denial or infringement of the

       person’s rights as to render the judgment void or voidable under the

       Ohio Constitution or the Constitution of the United States * * * may

       file a petition in the court that imposed sentence, stating the grounds

       for relief relied upon, and asking the court to vacate or set aside the

       judgment or sentence or to grant other appropriate relief.           The

       petitioner may file a supporting affidavit and other documentary

       evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(a).

       {¶8} R.C. 2953.21(A)(2) sets forth the time requirements for filing a petition

for post-conviction relief and provides, in relevant part:

       Except as otherwise provided in [R.C. 2953.23], a petition under [R.C.

       2953.21(A)(1)] shall be filed no later than three hundred sixty-five


                                          -4-
Case No. 3-18-14


       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 or

       adjudication * * *.

A trial court lacks jurisdiction to entertain an untimely petition for post-conviction

relief unless the defendant demonstrates that one of the R.C. 2953.23(A) exceptions

applies. State v. Martin, 10th Dist. Franklin No. 17AP-6, 2017-Ohio-5657, ¶ 9; R.C.

2953.23(A). Under R.C. 2953.23, a trial court may not entertain an untimely post-

conviction petition unless the petitioner initially demonstrates either (1) he was

unavoidably prevented from discovering the facts necessary for the claim for relief,

or (2) the United States Supreme Court recognized a new federal or state right that

applies retroactively to persons in the petitioner’s situation. R.C. 2953.23(A)(1)(a).

“If the petitioner is able to satisfy one of these threshold conditions, he must then

demonstrate by clear and convincing evidence that, but for the constitutional error

at trial or the sentencing hearing, no reasonable fact-finder would have found him

guilty of the offenses.” State v. Cunningham, 3d Dist. Allen No. 1-15-61, 2016-

Ohio-3106, ¶ 13; R.C. 2953.23(A)(1)(b).

       {¶9} “‘“[A] trial court’s decision granting or denying a postconviction

petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of

discretion; a reviewing court should not overrule the trial court’s finding on a

petition for postconviction relief that is supported by competent and credible


                                          -5-
Case No. 3-18-14


evidence.”’” State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-5669, ¶ 10,

quoting State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-Ohio-2309, ¶ 7,

quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58.

       {¶10} The trial court did not abuse its discretion by denying Lee’s petition

for post-conviction relief. Lee’s petition for post-conviction relief is untimely. The

trial transcripts in Lee’s direct appeal were filed in this court on June 2, 2010. (See

Doc. No. 30). His petition for post-conviction relief was filed in the trial court on

April 30, 2018. (See Doc. No. 35). Thus, because Lee filed his petition for post-

conviction relief in 2018—many years after the expiration of the deadline to file a

timely petition—his petition for post-conviction relief is untimely.

       {¶11} “Once a court has determined that a petition is untimely, no further

inquiry into the merits of the case is necessary.” State v. Morgan, 3d Dist. Shelby

No. 17-04-11, 2005-Ohio-427, ¶ 6, citing State v. Beaver, 131 Ohio App.3d 458

(11th Dist.1998). Trial courts should dismiss untimely post-conviction motions for

lack of jurisdiction; nevertheless, a trial court does not commit reversible error by

denying an untimely post-conviction petition. State v. Hatfield, 10th Dist. Franklin

No. 07AP-784, 2008-Ohio-1377, ¶ 8, citing State v. Hamilton, 10th Dist. Franklin

No. 03AP-852, 2004-Ohio-2573, ¶ 9 and State v. Hensley, 9th Dist. Lorain No.

03CA008293, 2003-Ohio-6457, ¶ 7.




                                         -6-
Case No. 3-18-14


       {¶12} Because Lee’s petition for post-conviction relief is untimely, he must

establish that he is entitled to file a delayed petition for post-conviction relief under

one of the exceptions in R.C. 2953.23(A)(1)(a). See Baker, 2016-Ohio-5669, at ¶

15. Lee failed to establish that either exception is applicable to this case. Lee does

not argue that he was unavoidably prevented from discovering the facts upon which

he must rely to present his claim for relief. Instead, Lee argues that the Supreme

Court of Ohio’s decision in Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314

recognized a new right that applies retroactively to persons in his position.

However, any “rights” recognized by the Supreme Court of Ohio in Johnson do not

satisfy the requirements of R.C. 2953.23(A)(1)(a). “Johnson identified a change in

the manner in which a state law is interpreted and applied. It is not a United States

Supreme Court case, and thus, does not identify any new, retroactive, federal or state

right recognized by the United States Supreme Court.” State v. Norris, 7th Dist.

Monroe No. 11MO4, 2013-Ohio-866, ¶ 14. See State v. Kirklin, 11th Dist. Portage

No. 2013-P-0085, 2014-Ohio-4301, ¶ 10 (“R.C. 2953.23 does not allow for

untimely petitions premised upon the Ohio Supreme Court’s recognition of a

retroactive right. Even if we could entertain untimely petitions premised upon a

retroactive right recognized by the Ohio Supreme Court, Johnson is not

retroactive.”) (Emphasis sic.); State v. Rutledge, 10th Dist. Franklin No. 11AP-853,

2012-Ohio-2036, ¶ 11 (“[T]he Ohio Supreme Court’s decision in State v. Johnson


                                          -7-
Case No. 3-18-14


* * * does not assist [Rutledge] in meeting the timeliness requirement because R.C.

2953.23(A)(1)(a) requires a decision from the United States Supreme Court, not one

from the Ohio Supreme Court.”). Therefore, because Lee did not make the requisite

showing under either prong of R.C. 2953.23(A)(1)(a), the trial court lacked

jurisdiction to consider Lee’s untimely petition for post-conviction relief. See

Rutledge at ¶ 11.

       {¶13} Because Lee’s petition is untimely and the trial court lacked

jurisdiction to consider the petition, the trial court should have dismissed Lee’s

petition; however, the trial court did not abuse its discretion by denying, rather than

dismissing, Lee’s petition. See State v. Carter, 3d Dist. Allen No. 1-17-09, 2017-

Ohio-4354, ¶ 12, citing Hatfield at ¶ 8, citing Hamilton at ¶ 9 and Hensley at ¶ 7.

       {¶14} Lee’s assignment of error is overruled.

       {¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.

/jlr




                                         -8-
