[Cite as State v. Holland, 2012-Ohio-1404.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CAO-122
BRIAN E. HOLLAND                               :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Licking County
                                                   Court of Common Pleas, Case No.
                                                   10CR628


JUDGMENT:                                          Reversed and Remanded


DATE OF JUDGMENT ENTRY:                            March 28, 2012




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

KENNETH OSWALT                                     BRIAN E. HOLLAND PRO SE
Licking County Prosecutor                          #647-963 BECI
BY: JUSTIN T. RADIC                                P.O. Box 540
20 South Second St., 4th Floor                     St. Clairsville, OH 43950
Newark, OH 43055
[Cite as State v. Holland, 2012-Ohio-1404.]


Gwin, P.J.

        {1}     Defendant-appellant Brian E. Holland appeals a judgment of the Court of

Common Pleas of Licking County, Ohio, which found his petition to vacate or set aside

judgment of conviction or sentence is untimely and a duplication of his direct appeal.

Appellant assigns two errors to the trial court:

        {2}     “I. TRIAL COURT ERRORED [SIC] WHEN IT DISMISSED PETITION FOR

POST CONVICTION RELIEF O.R.C. 2953.21.

        {3}     “II.   TRIAL     COURT        ERRORED   [SIC]   WHEN    IT   RULED     THAT

PETITIONER’S DIRECT APPEAL AND POST CONVICTION PETITION ARE A

DUPLICATION OF EACH OTHER.”

        {4}     The State concedes appellant’s petition for post-conviction relief was filed

within the time required by R.C. 2953.21 (A)(2).

        {5}     Appellant argues the trial court erred in not granting him an evidentiary

hearing on the merits of his motion. An evidentiary hearing is not automatically required

for every petition seeking post-conviction relief. State v. Gondor, 112 Ohio St.3d 377,

2006–Ohio–6679, at ¶ 51. While a trial court does not have jurisdiction to review an

untimely petition unless it meets with certain exceptions, if it is timely, the court must

determine if the petition sets forth sufficient operative facts to establish substantive

grounds for relief. R.C. 2953.21(G). The statute requires a court to make findings of

fact and conclusions of law if it finds there are no grounds for granting relief.

        {6}     The trial court found the petition was untimely, and did not make findings of

fact and conclusions of law. Because we find the petition was filed in a timely manner,

we reverse and remand with instructions for the court to review merits of the petition
Licking County, Case No. 2011-CAO-122                                                 3


and determine if a hearing is necessary. If the court determines no hearing is necessary

it should make the appropriate findings of fact and conclusions of law.

      {7}   The first assignment of error is sustained. The second assignment of error

is premature.

      {8}   For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is reversed, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J., and

Wise, J., concur

Hoffman, J., dissents



                                             _________________________________
                                             HON. W. SCOTT GWIN

                                             _________________________________
                                             HON. WILLIAM B. HOFFMAN

                                             _________________________________
                                             HON. JOHN W. WISE

WSG:clw 0321
Licking County, Case No. 2011-CAO-122                                                 4

Hoffman, J., dissenting

   {¶9}       I respectfully dissent from the majority opinion.

   {¶10}      The trial court found Appellant’s petition was a duplication of his direct

appeal.    Although sparse, such finding nevertheless can support its “undesignated”

legal conclusion Appellant’s petition is barred by res judicata.




                                                 ________________________________

                                                 HON. WILLIAM B. HOFFMAN
[Cite as State v. Holland, 2012-Ohio-1404.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
BRIAN E. HOLLAND                                  :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CAO-122




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Licking County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellee.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN


                                                      _________________________________
                                                      HON. JOHN W. WISE
