[Cite as State v. Eldridge, 2014-Ohio-2250.]


                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                    SCIOTO COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 13CA3584
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
PETER D. ELDRIDGE,             :    ENTRY
                               :
     Defendant-Appellant.      :    Released: 05/21/14
_____________________________________________________________
                          APPEARANCES:

Peter D. Eldridge, Chillicothe, Ohio, Pro Se Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant
Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶ 1} This is an appeal from a Scioto County Common Pleas Court

decision denying Appellant’s petition for post-conviction relief. On appeal,

Appellant challenges the search leading to his initial arrest, contending that

the Fourth Amendment to the United States and Ohio Constitutions prohibit

police officers from making warrantless and nonconsensual entry into a

suspect’s home to make a felony arrest. Upon review, we conclude that

Appellant’s motion was untimely filed. The trial court lacked jurisdiction to

address the merits of the petition and should have dismissed for lack of
Scioto App. No. 13CA3584                                                        2


jurisdiction. In addition, Appellant’s arguments were barred by the doctrine

of res judicata. For these reasons, the judgment of the Scioto County

Common Pleas Court is reversed. The trial court’s judgment entry

overruling Appellant’s motion for resentencing is vacated. The petition for

post-conviction relief should be dismissed for lack of jurisdiction.

                                    FACTS

      {¶ 2} On July 20, 2011, Appellant, Peter Eldridge, pled no contest to

three counts of aggravated trafficking in drugs with two of the counts

alleging he committed the trafficking within the vicinity of a juvenile.

Appellant stipulated there was sufficient evidence of guilt and the Scioto

County Court of Common Pleas found him guilty of all three counts.

Appellant filed a direct appeal of the trial court’s denial of his motion to

suppress, arguing 1) the affidavit submitted in support of the request for a

search warrant was inadequate and failed to establish probable cause; and 2)

law enforcement officers' execution of the search warrant was unreasonable

because they violated the knock and announce rule contained within R.C.

2935.12(A). This Court issued a decision on August 10, 2012, which found

the affidavit was sufficient to establish probable cause and the officers did

not violate R.C. 2935.12(A), which governs forcible entry in making an

arrest and execution of a search warrant. State v. Eldridge, 4th Dist. Scioto
Scioto App. No. 13CA3584                                                        3


No. 11CA3441, 2012-Ohio-3747. Accordingly, we overruled Appellant’s

two assignments of error and affirmed the trial court's judgment entry

denying his motion to suppress. Id.

      {¶ 3} Subsequently, on September 10, 2013, Appellant filed a motion

entitled “Defendant’s Motion for Resentencing Pursuant to Criminal Rule

47.” Appellant’s motion argued that he was entitled to be re-sentenced,

based upon claimed constitutional violations, namely that the search warrant

was not executed in a reasonable manner, and also that officers violated the

knock and announce rule in conducting a search of his residence. The trial

court treated Appellant’s motion as a petition for post-conviction relief and

denied it as untimely filed and barred by the doctrine of res judicata. It is

from the trial court’s October 22, 2013, judgment entry that Appellant now

brings his appeal, setting forth a single assignment of error for our review.

                           ASSIGNMENT OF ERROR

“I.   THE FOURTH AMENDMENT TO THE UNITED STATES
      CONSTITUTION AND OHIO CONSTITUTION, ARTICLE I,
      SECTION 14, PROHIBITS POLICE OFFICERS FROM MAKING
      WARRANTLESS AND NONE CONSENNAL ENTRY INTO A
      SUSPECT’S HOME TO MAKE A FELONY ARREST.” [SIC]

                             LEGAL ANALYSIS

      {¶ 4} In his sole assignment of error, Appellant contends that the

fourth amendment to both the Ohio and United States Constitutions
Scioto App. No. 13CA3584                                                        4


prohibited police officers from making a warrantless and nonconsensual

entry in his home, which led to his arrest. The initial motion filed in the trial

court wherein Appellant raised this argument was titled “Defendant’s

Motion for Resentencing Pursuant to Criminal Rule 47.” In that motion,

Appellant sought an order resentencing him, based upon his claim that his

sentences were contrary to law. This argument seemed to be based upon his

contention that police officers violated the knock and announce rule in

conducting a search of his residence. Although Appellant’s motion was not

expressly titled as such, the trial court treated it as a petition for post-

conviction relief and denied it as being both untimely filed and barred by the

doctrine of res judicata. For the following reasons, we agree with the

decision of the trial court.

       {¶ 5} Appellant commenced the instant proceedings on September

10, 2013, with the filing of his motion for resentencing. Appellant’s motion

raised constitutional challenges to his convictions and sentences. We

initially note that courts may generally “recast irregular motions into

whatever category necessary to identify and to establish the criteria by which

a motion should be evaluated.” State v. Sanders, 4th Dist. Pickaway No.

12CA4, 2013-Ohio-1326, ¶ 5; citing State v. Lett, 7th Dist. Mahoning No.

09MA131, 2010-Ohio-3167, ¶ 15; citing State v. Schlee, 117 Ohio St.3d
Scioto App. No. 13CA3584                                                           5


153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. As Appellant’s motion was

filed post-conviction and subsequent to his initial, direct appeal and because

it raised constitutional claims, we believe the trial court properly treated the

motion as a petition for post-conviction relief, brought pursuant to R.C.

2953.21.

      {¶ 6} “[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

evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860

N.E.2d 77, ¶ 58. The term ‘abuse of discretion’ connotes more than an error

of law or of judgment; it implies the court's attitude is unreasonable,

arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). Reviewing Appellant’s motion as a petition for post-

conviction relief, we find the trial court properly denied the motion as both

untimely and barred by res judicata.

      {¶ 7} Here, Appellant filed an initial, direct appeal of his underlying

conviction. Generally, an appellant must file his petition for post-conviction

relief within 180 days of the filing of the transcript in an appeal, or within

180 days of the expiration of the time for filing an appeal, if he filed no
Scioto App. No. 13CA3584                                                        6


appeal. R.C. 2953.21(A)(2). “The time limitation prescribed in R.C.

2953.21(A)(2) is jurisdictional, i.e., a trial court cannot entertain an untimely

petition unless one of the exceptions set forth in R.C. [2953.23(A) ] applies.”

State v. Davis, 4th Dist. Washington No. 10CA25, 2011-Ohio-1706, ¶ 9;

citing State v. Smith, 4th Dist. Washington No. 06CA65, 2007-Ohio-4730, ¶

11. The transcripts in Appellant’s direct appeal of this matter were filed in

the court of appeals on February 15, 2012. As such, the expiration of time

for filing a petition for post-conviction relief expired one hundred eighty

days after that. Appellant, however, did not file his petition until September

10, 2013, which was well beyond that time limit. Thus, Appellant’s petition

was untimely filed, unless one of the exceptions applies.

      {¶ 8} Here, R.C. 2953.23(A)(2) does not apply because DNA testing

has not established Appellant's actual innocence. What remains is for

Appellant to satisfy R.C. 2953.23(A)(1), which provides as follows:

      “(A) Whether a hearing is or is not held on a petition filed

      pursuant to section 2953.21 of the Revised Code, 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:
Scioto App. No. 13CA3584                                                    7


      (1) Both of the following apply:

      (a) Either the petitioner shows that the petitioner was

      unavoidably prevented from discovery of the facts upon which

      the petitioner must rely to present the claim for relief, or,

      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 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 or, if the claim challenges a

      sentence of death that, but for constitutional error at the

      sentencing hearing, no reasonable factfinder would have found

      the petitioner eligible for the death sentence.”

      {¶ 9} Here, Appellant does not attempt to argue that he was

unavoidably prevented from discovering any of the facts in support of

his claim or that a new federal or state right has been recognized that
Scioto App. No. 13CA3584                                                         8


applied to him retroactively. In fact, the arguments raised in

Appellant’s petition were raised in his direct appeal of this matter and

were rejected by this Court. State v. Eldridge, 4th Dist. Scioto No.

11CA3441, 2012-Ohio-3747, ¶ 33 (finding that the trial court did not

err in refusing to suppress the evidence based upon law enforcement's

alleged violation of the knock and announce rule). As such, Appellant

has not demonstrated that he satisfies the exceptions to timely filing

set forth in R.C. 2953.23(A). Thus, his petition was untimely filed.

      {¶ 10} Further, as we noted in State v. Sanders at ¶ 7, The Supreme

Court of Ohio has held that the doctrine of res judicata applies when

determining whether post-conviction relief is warranted under R.C. 2953.21.

See State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, at the syllabus

(1996); State v. Nichols, 11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984); State

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph eight of the

syllabus (1967). As such, a petitioner may not raise, for purposes of post-

conviction relief, any error that was raised, or could have been raised, on

direct appeal. State v. Sanders at ¶ 7; citing State v. Franklin, 4th Dist.

Meigs No. 05CA9, 2006-Ohio-1198, ¶ 10; State v. Peeples, 4th Dist.

Pickaway No. 05CA25, 2006-Ohio-218, ¶ 11. As we have already

discussed, the claim raised in Appellant’s petition for post-conviction relief
Scioto App. No. 13CA3584                                                       9


was also raised as part of Appellant’s direct appeal of this matter, and was

rejected by this Court. Appellant’s attempt to raise it once again is barred by

res judicata.

      {¶ 11} In light of the foregoing, we reverse the judgment of the trial

court. The court’s judgment entry overruling Appellant’s motion for

resentencing is vacated. The petition for post-conviction relief should be

dismissed for lack of jurisdiction.

                              JUDGMENT REVERSED AND VACATED.
Scioto App. No. 13CA3584                                                         10


                            JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND VACATED
and Appellant recover costs from Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.

                                         For the Court,

                                  BY: _____________________________
                                      Matthew W. McFarland, Judge

                             NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
