[Cite as State v. Jones, 2014-Ohio-2592.]
                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )              CASE NO. 13 MA 53
V.                                               )
                                                 )                    OPINION
AARON JONES,                                     )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 06CR95

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Aaron L. Jones, Pro-se
                                                 #A511-342
                                                 Grafton Correctional Institution
                                                 2500 S. Avon-Belden Rd.
                                                 Grafton, Ohio 44044



JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: June 13, 2014
[Cite as State v. Jones, 2014-Ohio-2592.]
DONOFRIO, J.

        {¶1}     Defendant-appellant Aaron Jones appeals the decision of the Mahoning
County Common Pleas Court which denied his successive and untimely petition for
post-conviction relief.
        {¶2}     Jones was convicted for the aggravated robbery and aggravated
burglary of his former girlfriend. She had testified that he broke into her house with
his cousin while she was sleeping. She said appellant held her by the hair,
repeatedly punched her in the face, and threatened her while his cousin ransacked
the room and stole money and prescription pills from her.
        {¶3}     In a July 24, 2006 judgment entry, Jones was sentenced to ten years
on each count to run consecutively. In the direct appeal, appellant raised six
assignments of error to this court: (1) fifteen allegations of ineffective assistance of
counsel; (2) sufficiency of the evidence; (3) weight of the evidence; (4) failure to
render curative instructions after defense objections; (5) speedy trial; and (6)
sentencing. This court overruled his arguments and affirmed his conviction. State v.
Jones, 7th Dist. No. 06 MA 109, 2008-Ohio-1541.
        {¶4}     Jones has filed numerous post-trial motions on his own behalf. On
January 5, 2007, Jones filed a petition to vacate his sentence based upon claims that
the elements were not satisfied and that his speedy trial rights were violated. On
March 27, 2008, he filed a motion for a new trial, which was denied three days later.
On July 31, 2008, Jones filed a petition for post-conviction relief raising claims of
ineffective assistance of counsel and speedy trial violations. He filed the same
petition on August 6, 2008, at which time the trial court denied the petition. On
February 25, 2009, Jones filed a motion for acquittal claiming insufficient evidence
and problems with the jury verdict.
        {¶5}     On November 18 and December 28, 2009, he filed motions to vacate a
void judgment. On January 7, 2010, Jones filed a petition for post-conviction relief,
claiming a defective indictment due to the lack of the recklessness mens rea and
ineffective assistance of counsel due to a failure to investigate. On February 5, 2010,
the trial court denied the motions to vacate and the petition for post-conviction relief.
                                                                                  -2-


Jones appealed and because his petition failed to meet or even allege the
requirements for an untimely or successive petition under R.C. 2953.23(A), this court
found that the trial court had no jurisdiction to consider the petition, and affirmed.
       {¶6}   On December 5, 2011, Jones filed a “MOTION TO CORRECT
JUDGEMENT AND/OR VACATE AND RESENTENCE PURSUANT TO (FOSTER-
FIX) ENACTED IN AM.SUB.H.B. 86.” 2011 H.B. 86, enacted September 20, 2011,
requires a court imposing consecutive sentencing to make certain findings. The
legislation was enacted in response to the Ohio Supreme Court’s statement that its
Foster decision was incorrect in striking down statutory consecutive sentence
provisions and that the legislature would need to enact a new statute to revive any
requirement of findings for consecutive sentences. State v. Hodge, 128 Ohio St.3d 1,
2010-Ohio-6320, 941 N.E.2d 768, paragraph three of the syllabus. Basically, Jones
argues that his 2006 sentence which contained consecutive sentences was
somehow rendered void by 2011 H.B. 86 and that he should be resentenced under
this legislation that was enacted five years after he was sentenced.
       {¶7}   The trial court overruled Jones’s motion on April 9, 2013. This appeal
followed.
       {¶8}   Still proceeding on his own behalf, Jones advances three assignments
of error. As a preliminary matter, Jones seems to take issue with his December 5,
2011 motion being treated as a petition for post-conviction relief. But, “[w]here a
criminal defendant, subsequent to his or her direct appeal, files a motion seeking
vacation or correction of his or her sentence on the basis that his or her constitutional
rights have been violated, such a motion is a petition for postconviction relief as
defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131
(1997), syllabus. Jones’s petition fulfills the definition of a petition for postconviction
relief: (1) the motion was filed after his direct appeal; (2) he seeks to vacate his
sentence as void, and; (3) in the petition, he alleged that his constitutional rights were
violated and that the trial court sentenced him without appropriate jurisdiction.
Therefore, Jones’s petition is properly construed and treated as a petition for
                                                                                -3-


postconviction relief.
       {¶9}   Jones’s first assignment of error states:

              Issues presented for THIS appeal[.]

       {¶10} Under this assignment of error (and throughout his appellate brief),
Jones sets forth and attempts to resurrect numerous issues, including in particular
the sufficiency of the evidence, the victim’s credibility, and the effectiveness of his
trial court counsel’s assistance. This court cannot address these issues since Jones
did not raise them in his December 5, 2011 motion. Additionally, as this court pointed
out in Jones’s previous post-conviction appeal, to the extent this court has already
addressed these issues in Jones’s direct appeal, they cannot be raised in a post-
conviction petition. State v. West, 7th Dist. No. 07 JE 26, 2009-Ohio-3347, ¶ 24 (res
judicata allows court to deny petition for post-conviction relief without hearing where
claims were or could have been raised on direct appeal). Other issues he refers to
could have been raised in the direct appeal but were not. Id.
       {¶11} Accordingly, Jones’s first assignment of error is without merit.
       {¶12} Jones’s second and third assignments of error are each directed more
towards the issue presented by his December 5, 2011 petition (i.e., whether his 2006
sentence containing consecutive sentences requires resentencing under 2011 H.B.
86). Jones’s second assignment of error states:

              Trial Court Judge Abused It’s [sic] Discretion In Overruling the
       December 5, 2011 Motion Entitled “FOSTER-FIX REMEDY” on April 9,
       2013, For The Judge ORDERED The State To Respond AND THEY
       DIDN’T.

       {¶13} The state is not mandated to respond to a petition for post-conviction
relief under R.C. 2953.21(D). State v. Smith, 7th Dist. No. 06-BE-64, 2007-Ohio-
5244, ¶ 18, citing State v. Skelnar, 71 Ohio App.3d 444, 446, 594 N.E.2d 88 (9th
Dist.1991). The state’s failure to respond to a petition for post-conviction relief does
                                                                                 -4-


not necessarily mean that the petitioner is automatically granted judgment in their
favor either. Id. Rather, a petitioner’s remedy for the failure of the state to respond to
a post-conviction petition is to move for ruling without the state’s response. Id., citing
State v. Halliwell, 134 Ohio App.3d 730, 736, 732 N.E.2d 405 (8th Dist.1999).
       {¶14} Regardless, Jones’s petition was untimely and successive. As such, it
was subject to the requirements of R.C. 2953.23. R.C. 2953.21(A)(2) (petition for
post-conviction relief must be filed within one hundred eighty days of the date in
which the trial transcript is filed in the court of appeals in the direct appeal, unless
certain exceptions enumerated in 2953.23 apply). Pursuant to R.C. 2953.23, the trial
court cannot entertain an untimely or successive petition unless division (A)(1) or (2)
applies. Division (A)(2) deals with DNA, which is inapplicable here. Division (A)(1)
requires both of the following to 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.

       {¶15} Here, Jones did not advise the trial court that he was or how he was
unavoidably prevented from discovering the fact on which his petition was based; nor
                                                                                    -5-


did he claim a new retroactive right has been recognized by the United States
Supreme Court. R.C. 2953.23(A)(1). In fact, all of the arguments made could have
been raised in a timely filed petition for post-conviction relief. As such, the trial court
had no jurisdiction to consider the petition. State v. Bryant, 7th Dist. No. 10 MA 11,
2010-Ohio-4401, ¶ 16.
       {¶16} Also, it cannot be said that he showed by clear and convincing
evidence that, but for constitutional errors at trial, no reasonable fact-finder would
have found him guilty. R.C. 2953. 23(A)(2). Thus, there was an alternative reason
why the trial court had no jurisdiction to consider the petition. Bryant at ¶ 16. Finally, it
should be noted that a trial court need not issue findings of fact or conclusions of law
in dismissing an untimely filed or successive petition. See, e.g., State ex rel.
Reynolds v. Basinger, 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459, ¶ 7;
State ex rel. Carroll v. Corrigan, 84 Ohio St.3d 529, 530, 705 N.E.2d 1226 (1999);
Gause v. Zaleski, 85 Ohio St.3d 614, 615, 710 N.E.2d 684 (1999).
       {¶17} Accordingly, Jones’s second assignment of error is without merit.
       {¶18} Jones’s third and final assignment of error states:

              The Effects Of HB 86 In Defendant’s Sentencing[.]

       {¶19} Jones’s overriding argument in this appeal is that his 2006 sentence
containing consecutive sentences requires resentencing under 2011 H.B. 86. Even
assuming for the sake of argument that his petition was timely, Jones would not be
entitled to resentencing under 2011 H.B. 86. Jones was sentenced well before the
effective date of 2011 H.B. 86. This court has directly rejected similar arguments that
2011 H.B. 86 should apply retroactively. State v. Williams, 7th Dist. No. 11 MA 131,
2012-Ohio-6277, ¶ 62. See also State v. Steinfurth, 8th Dist. No. 97549, 2012-Ohio-
3257, ¶ 14; State v. Stalnaker, 11th Dist. No. 2011-L-151, 2012-Ohio-3028, ¶ 15
       {¶20} Accordingly, Jones’s third assignment of error is without merit.
                                                           -6-


      {¶21} The judgment of the trial court is affirmed.

Waite, J., concurs.

DeGenaro, P.J., concurs.
