[Cite as State v. Carter, 2013-Ohio-4637.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-13-26

        v.

WILLIAM T. CARTER,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2009-0186

                                       Judgment Affirmed

                            Date of Decision: October 21, 2013




APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Jana E. Emerick for Appellee
Case No. 1-13-26


PRESTON, P.J.

       {¶1} Defendant-appellant, William T. Carter, appeals the Allen County

Court of Common Pleas’ judgment entry denying his second post-conviction

petition. We affirm.

       {¶2} On October 26, 2009, Carter pled guilty to Count One of kidnapping

in violation of R.C. 2905.01(A)(2), a first degree felony; and, Count Two of

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

pursuant to a written plea agreement. (Oct. 26, 2009 Tr. at 1-4, 12); (Doc. No.

25). Both counts carried repeat violent offender (RVO) specifications pursuant to

R.C. 2929.01(D)(D) and 2941.149. (Id.); (Id.). The State agreed to request a pre-

sentence investigation report as part of the plea agreement but did not agree to

remain silent at sentencing. (Doc. No. 25).

       {¶3} On December 16, 2009, the trial court sentenced Carter to ten years on

each count, but the trial court ordered that the terms run concurrent to each other

due to merger. (Dec. 18, 2009 JE, Doc. No. 32). The trial court also sentenced

Carter to ten years on each of the RVO specifications but ordered that those terms

run concurrent to each other due to merger. (Id.). The trial court further ordered

that the ten-year term for the RVO specifications run first and consecutive to the

ten-year term imposed for the underlying offenses, for an aggregate 20-year

sentence. (Id.).


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       {¶4} On January 13, 2010, Carter filed a notice of appeal. (Doc. No. 35).

On December 27, 2010, this Court reversed and remanded for resentencing with

instructions that the trial court allow the State to elect which offense it would

pursue for sentencing purposes.

       {¶5} On April 6, 2011, Carter filed a motion to withdraw his guilty plea.

(Doc. No. 52).

       {¶6} On June 16, 2011, the trial court overruled Carter’s motion to

withdraw and resentenced him to ten years on Count Two of aggravated robbery

after the State elected to proceed on the same. (Doc. Nos. 67, 69). The trial court

also imposed ten years for the RVO specification affiliated with Count Two, and

further ordered that Carter serve that 10-year term first and consecutive to the ten

years imposed for the underlying offense, for an aggregate 20-year sentence.

(Doc. No. 69).

       {¶7} On July 13, 2011, Carter filed a notice of appeal from the trial court’s

decision denying his motion to withdraw his guilty plea, which was assigned

appellate case no. 1-11-36. (Doc. No. 72). On November 28, 2011, this Court

affirmed the trial court’s decision. (Doc. No. 88).

       {¶8} On November 10, 2011, Carter, pro se, filed a notice of appeal from

the trial court’s June 21, 2011 judgment entry of resentencing, which was assigned




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appellate case no. 1-11-65. (Doc. No. 82). This Court denied Carter leave to file

this delayed appeal on December 27, 2011. (Doc. No. 96).

       {¶9} On January 13, 2012, Carter filed a post-conviction petition pursuant

to R.C. 2953.21. (Doc. No. 93). Carter argued that the trial court represented to

his attorney that it would consider resentencing him to only five years on the RVO

specification if Carter withdrew his motion to withdraw his guilty plea. (Id.).

Carter maintained that, because he refused to withdraw his motion, the trial court

punished him by resentencing him to 10 years on the RVO specification. (Id.).

Carter also filed that same day a motion asking Judge Warren to recuse himself in

light of his post-conviction petition’s allegations. (Doc. No. 94).

       {¶10} On January 19, 2012, the trial court denied the motion to recuse, and

then, on January 27, 2012, denied Carter’s petition without a hearing. (Doc. Nos.

97-98).

       {¶11} On February 15, 2012, Carter, pro se, filed a notice of appeal from

the trial court’s judgment denying his petition. (Doc. No. 100). On September 24,

2012, this Court affirmed the trial court’s judgment. (Doc. No. 107).

       {¶12} On March 21, 2013, Carter, pro se, filed a second post-conviction

petition, which is the subject of this appeal. (Doc. No. 109). Carter alleged that

he was denied effective assistance of counsel during the plea bargaining

negotiations pursuant to Missouri v. Frye, 132 S.Ct. 1399 (2012). In particular,


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Carter alleged that trial counsel gave him misinformation regarding merger of

allied offenses, the nature of the charges, and the maximum sentence, and trial

counsel failed to conduct a diligent investigation. (Doc. No. 109).

       {¶13} On April 4, 2013, the trial court denied the petition without a

hearing, finding that the issue of ineffective assistance was barred by res judicata,

and, alternatively, Carter failed to show ineffective assistance since the record

demonstrated that Carter entered his guilty plea voluntarily and knowingly. (Doc.

No. 110).

       {¶14} On May 2, 2013, Carter, pro se, filed a notice of appeal. (Doc. No.

112). The trial court thereafter appointed Carter appellate counsel. (Doc. No.

117). Carter now appeals raising one assignment of error.

                               Assignment of Error

       The Trial Court below committed an error prejudicial to the
       Defendant by ruling the the [sic] Rulings of the Supreme Court
       of the United States in Missouri v. Frye and Lafler v. Cooper
       should not be applied in the Defendant’s case as retroactive
       pronouncements of Constitutional Law allowing the Defendant a
       full evidentiary hearing on Post Conviction [sic] Relief outside of
       the 180 day time limitation as set by Ohio Statute.

       {¶15} In his sole assignment of error, Carter argues that the trial court

failed to apply the U.S. Supreme Court’s decisions in Missouri v. Frye and Lafler

v. Cooper to his case. 132 S.Ct. 1399 (2012); 132 S.Ct. 1376 (2012). Carter

acknowledges that his post-conviction petition is outside the 180-day time


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limitation; however, he argues that R.C. 2953.23(A)(1)’s exception applies since

Frye and Cooper declared a retroactive constitutional right applicable to his case.

Carter further asserts that trial counsel was ineffective during the plea negotiations

because: (1) his signature on the plea negotiation form was not genuine; and, (2)

trial counsel advised him to plead to the indictment as charged and failed to

negotiate a lesser sentence or even obtain the State’s silence at sentencing.

        {¶16} As Carter acknowledges, post-conviction petitions must generally be

filed within 180 days after the trial transcripts are filed in the court of appeals, if a

direct appeal is filed. R.C. 2951.23(A)(2). Carter admits that his petition is

untimely under this general rule. However, R.C. 2953.23 provides, in pertinent

part:

        (A) * * * [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) * * * 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




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      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 * * *.

      {¶17} This Court has repeatedly stated that R.C. 2953.23(A) divests a trial

court of jurisdiction to hear a petition after the expiration of the one-hundred

eighty day period set by R.C. 2953.21(A)(2) unless an exception under R.C.

2953.23(A)(1) or (2) is met. State v. Draper, 3d Dist. Putnam No. 12-10-07,

2011-Ohio-773, ¶ 12; State v. Morgan, 3d Dist. Shelby No. 17-04-11, 2005-Ohio-

427, ¶ 5-6. “Once a court has determined that a petition is untimely, no further

inquiry into the merits of the case is necessary.” Morgan, at ¶ 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.




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       {¶18} The facts of this case do not fall within the holdings of Frye and

Cooper. In Frye, the U.S. Supreme Court held that trial counsel had a duty to

communicate the terms of a plea offer to a defendant and that counsel may be

ineffective for failing to do so. 132 S.Ct. 1399. There is nothing in the record to

indicate that trial counsel failed to communicate the terms of the plea offer to

Carter triggering Frye. In fact, the trial court went over the terms of the agreement

with Carter during the change of plea hearing, and Carter acknowledged his

understanding of the same. (Oct. 26, 2009 Tr., passim). Furthermore, despite his

allegations on appeal that his signature on the plea agreement was not genuine,

Carter signed the plea agreement in open court and acknowledged the signature as

his own. (Id. at 10-11). It is noteworthy that, prior to accepting Carter’s change of

plea, the trial court informed Carter that whether the sentences would run

concurrently or consecutively was a contested issue the parties would brief and

that would be decided at the sentencing hearing. (Id. at 4).

       {¶19} In Cooper, the U.S. Supreme Court held that counsel may be

ineffective when counsel’s advice led to the rejection of a plea deal that would

have resulted in a lesser sentence. 132 S.Ct. 1376. There is no indication in the

record that trial counsel advised Carter to reject a plea offer making Cooper

applicable herein.




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       {¶20} Consequently, regardless of whether Frye and Cooper created a

retroactive constitutional right triggering R.C. 2953.23(A)(1)(a)’s exception to the

180-day time limitation, Frye and Cooper do not apply in this case. Therefore, the

trial court was presented with an untimely post-conviction petition under R.C.

2951.23(A) and should have dismissed it for lack of jurisdiction. Draper at ¶ 12;

Morgan at ¶ 5-6. Nevertheless, the trial court did not commit reversible error by

denying Carter’s petition in this case. Hatfield at ¶ 8, citing Hamilton at ¶ 9 and

Hensley at ¶ 7.

       {¶21} Carter’s assignment of error is, therefore, overruled.

       {¶22} 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

ROGERS and SHAW, J.J., concur.

/jlr




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