[Cite as State v. Hughes, 2014-Ohio-2914.]

                              IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                       No. 13AP-1006
v.                                                  :              (C.P.C. No. 05CR-01-125)

Stephen L. Hughes,                                  :             (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                      Rendered on June 30, 2014


                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 Stephen L. Hughes, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Stephen L. Hughes, appeals from a judgment entered
by the Franklin County Court of Common Pleas denying his petition for postconviction
relief. For the following reasons, we affirm that judgment.
I. Factual and Procedural Background
        {¶ 2}    In 2005, a Franklin County Grand Jury indicted appellant for counts of
aggravated burglary, kidnapping, attempted murder, felonious assault, violating a
protective order or consent agreement, and menacing by stalking. A jury found him guilty
of some charges and not guilty of others. The trial court sentenced him accordingly.
Appellant appealed his convictions to this court. In that appeal, he argued that his
convictions were not supported by sufficient evidence and were against the manifest
No. 13AP-1006                                                                          2

weight of the evidence and that the trial court improperly sentenced him. Although this
court affirmed appellant's convictions, we remanded the matter for a resentencing to
comply with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. State v. Hughes, 10th
Dist. No. 05AP-1287, 2006-Ohio-5411. In December 2006, the trial court resentenced
appellant and this court affirmed his sentence. State v. Hughes, 10th Dist. No. 07AP-4,
2007-Ohio-3625.
       {¶ 3} In 2011, appellant filed a "Motion to Correct A Void Sentence" in which he
argued for the first time that he was sentenced for offenses that should have merged for
purposes of sentencing in violation of R.C. 2941.25. To support his argument, appellant
relied on cases from the Supreme Court of Ohio that had been decided after his
sentencing. The trial court denied appellant's motion and this court affirmed. State v.
Hughes, 10th Dist. No. 12AP-165, 2012-Ohio-4513 ("Hughes III"). In particular, we first
noted that res judicata barred consideration of appellant's merger claims because he did
not present them in his first appeal. Id. at ¶ 15. We also noted that the Supreme Court of
Ohio cases appellant relied on, State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, and
State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, did not apply retroactively to his
convictions. Hughes III at ¶ 16.
       {¶ 4} Appellant then filed a petition for postconviction relief on September 19,
2013. He again argued that he had been sentenced for offenses that should have merged
for purposes of sentencing in violation of R.C. 2941.25.        He also argued that R.C.
2953.23(A)(1)(a), which allows trial courts to hear untimely filed petitions for
postconviction relief in certain situations, was unconstitutional. The trial court denied
appellant's petition, concluding that it was untimely and raised issues that were barred by
res judicata.
II. The Appeal
       {¶ 5} Appellant appeals and assigns the following errors:
                [1.] The trial court erred and abused judicial discretion by
                refusing to rule that appellant has a due process and equal
                protection right to have the 2010 Johnson decision applied
                retroactively to his case on collateral review, in accord with
                the principles set forth in Fiore, Bunkley, and Agee.

                [2.] The trial court erred and abused judicial discretion by
                refusing to rule that any application of Ali v. State of Ohio
No. 13AP-1006                                                                            3

              violates the Supremacy, Due Process and Equal Protection
              Clauses of the United States Constitution because it directly
              conflicts with the decisions of Fiore, Bunkley, and Agee.

              [3.] The trial court erred and abused judicial discretion by
              applying the doctrine of res judicata in violation of due
              process, and by applying it to appellant's constitutional
              challenge to Ohio Rev. Code 2953.23(A)(1)(a).

              [4.] The trial court erred and abused judicial discretion by not
              ruling that Ohio Rev. Code 2953.23(A)(1)(a) is
              constitutionally defective on its face and as applied because it
              doesn’t contain a provision to bring a collateral challenge in
              accord with the principles set forth in Fiore, Bunkley, and
              Agee; violating the Due Process Clause of the United States
              and Ohio Constitution.

              [5.] The trial court erred and abused judicial discretion by not
              applying the 2010 Johnson decision retroactively on collateral
              review because Johnson's "conduct" standard establishes
              appellant's convictions and sentences are in violation of the
              Double Jeopardy Clauses of the United States and Ohio
              Constitutions, via Ohio Rev. Code 2941.25(A).

       A. Appellant's Untimely Petition for Postconviction Relief
       {¶ 6} First, we note that appellant does not challenge the trial court's conclusion
that his petition was untimely filed. R.C. 2953.21 sets forth the requirements for filing a
petition for postconviction relief. R.C. 2953.21(A)(2) provides:
              [A] petition under division (A)(1) of this section shall be filed
              no later than one hundred eighty 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 or, if the
              direct appeal involves a sentence of death, the date on which
              the trial transcript is filed in the supreme court. If no appeal is
              taken, * * * the petition shall be filed no later than one
              hundred eighty days after the expiration of the time for filing
              the appeal.

       {¶ 7} Appellant filed his petition in 2013, many years after the statutory deadline
for filing such a petition. Therefore, appellant's petition was untimely. A trial court lacks
jurisdiction to entertain an untimely petition for postconviction relief unless petitioner
demonstrates that one of the exceptions in R.C. 2953.23(A) applies. State v. Tanksley,
No. 13AP-1006                                                                                       4

10th Dist. No. 13AP-769, 2014-Ohio-1194, ¶ 6, citing State v. Hollingsworth, 10th Dist.
No. 08AP-785, 2009-Ohio-1753, ¶ 8.
        {¶ 8} Appellant makes no attempt to argue that any of the exceptions to the
jurisdictional bar apply to his petition. Instead, he argues in his third and fourth
assignments of error that the exception in R.C. 2953.23(A)(1), which allows a trial court to
consider an untimely petition if it is based on a United States Supreme Court case that
recognizes a new right that applies retroactively, is unconstitutional because it does not
allow the same consideration if the petition is based on a decision of the Supreme Court of
Ohio.    Appellant claims that the Supreme Court of Ohio in Johnson recognized a
retroactive right that should allow the trial court to consider his untimely petition. For a
number of reasons, we disagree.
        {¶ 9} First, appellant has not demonstrated that the Supreme Court of Ohio
recognized a new right that applies retroactively to his case. This court rejected that
argument in appellant's earlier appeal. Hughes III at ¶ 16 (Johnson case that altered
merger analysis after appellant's sentencing did not apply retroactively to appellant's
convictions). See also State v. Thompkins, 10th Dist. No. 12AP-1080, 2013-Ohio-3599,
¶ 11 (rejecting retroactive application of Johnson). Second, there is no constitutional right
to file a petition for postconviction relief, and the only rights afforded to a defendant in
postconviction proceedings are those specifically granted by the legislature. State v.
Steffan, 70 Ohio St.3d 399, 410 (1994); State v. Norris, 7th Dist. No. 11 MO 4, 2013-Ohio-
866, ¶ 7.1 Finally, the effect of finding the exception unconstitutional would not benefit
appellant. Appellant appears to assume that by finding the exception unconstitutional,
we would allow untimely petitions to be considered if they were based on a Supreme
Court of Ohio case that recognized a new right that applies retroactively. That would not
be the relief afforded. If we concluded that the exception was unconstitutional, we would
strike the exception down, not add language to the exception.
        {¶ 10} Because appellant failed to establish the applicability of an exception that
would allow the trial court to consider his untimely petition, the trial court lacked
jurisdiction to entertain his petition for postconviction relief. Tanksley at ¶ 8; State v.

1 Notwithstanding, courts have consistently affirmed the constitutionality of R.C. 2953.23.     State v.
Robinson, 8th Dist. No. 100077, 2014-Ohio-397, ¶ 11 (rejecting similar assignments of error as appellant
presents in this case in affirming the denial of a motion to correct sentence).
No. 13AP-1006                                                                                            5

Dugger, 10th Dist. No. 06AP-887, 2007-Ohio-1243, ¶ 10. Accordingly, the trial court did
not err by denying appellant's petition, although technically, the petition should have
been dismissed for lack of jurisdiction. State v. Espinal, 10th Dist. No. 12AP-346, 2012-
Ohio-5478, ¶ 10. We overrule appellant's third and fourth assignments of error.
III. Conclusion
         {¶ 11} For these reasons, we overrule appellant's third and fourth assignments of
error.    That disposition renders moot appellant's other assignments of error, which
address the merits of his petition.2 State v. Mangus, 10th Dist. No. 06AP-1105, 2009-
Ohio-6563, ¶ 14. Accordingly, we affirm the judgment of the Franklin County Court of
Common Pleas.
                                                                                    Judgment affirmed.

                               CONNOR and DORRIAN, JJ., concur.




2 We note that even if appellant's petition was timely, res judciata would bar his claims. Merger claims
are issues that could be raised on direct appeal and, therefore, are barred by res judicata if not so raised.
Hughes III at ¶ 15; State v. Garnett, 10th Dist. No. 12AP-594, 2013-Ohio-1210, ¶ 9; State v. Timmons,
10th Dist. No. 11AP-895, 2012-Ohio-2079, ¶ 11. Appellant did not present these merger issues in his
direct appeal and, therefore, would be barred by res judicata from raising them here.
