[Cite as State v. Thompson, 2016-Ohio-1146.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 2-15-12

        v.

TRAVARUS D. THOMPSON,                                    OPINION

        DEFENDANT-APPELLANT.




                Appeal from Auglaize County Common Pleas Court
                          Trial Court No. 2012-CR-0061

                                     Judgment Affirmed

                           Date of Decision: March 21, 2016




APPEARANCES:

        Travarus D. Thompson Appellant

        Edwin A. Pierce for Appellee
Case No. 2-15-12


ROGERS, J.

       {¶1} Defendant-Appellant, Travarus Thompson, appeals the judgment of

the Court of Common Pleas of Auglaize County denying his pro-se “Motion for

Modification of Sentence.” On appeal, Thompson argues that the trial court erred

in sentencing him to eight years in prison. For the reasons that follow, we affirm

the judgment of the trial court.

       {¶2} On April 17, 2012, the Auglaize County Grand Jury indicted

Thompson on one count of trafficking in cocaine, with a major drug offender

specification, in violation of R.C. 2925.03(A)(1), 2925.03(C)(4)(g) and

2941.1410, a felony of the first degree.          The charge arose after Thompson

allegedly sold more than 100 grams of cocaine to an undercover police officer.

       {¶3} After a period of plea negotiations, Thompson plead guilty to an

amended indictment charging him with one count of trafficking in cocaine, with

no   attendant    specification,   in   violation   of   R.C.   2925.03(A)(1)    and

2925.03(C)(4)(f), a felony of the first degree.

       {¶4} On September 4, 2012, the trial court sentenced Thompson to a

mandatory eight year prison term, pursuant to R.C. 2925.03(C)(4)(f). Thompson

appealed, but the appeal was ultimately dismissed.




                                         -2-
Case No. 2-15-12


         {¶5} On August 21, 2015, Thompson filed a “Motion for Modification of

Sentence” arguing that he should have received a shorter sentence because he took

responsibility for his actions and did not have a criminal record.

         {¶6} On August 31, 2015, the trial court denied Thompson’s motion.

         {¶7} It is from this judgment that Thompson appeals, presenting the

following assignment of error for our review1.

                                        Assignment of Error

         THE TRIAL COURT ERRED IN JUDGMENT WHERE IT
         JUDICIALLY DENIED DEFENDANT’S MOTION FOR A
         MODIFICATION OF SENTENCE IN VIOLATION OF OHIO
         REVISED CODE § 2929.12 AND IN VIOLATION OF
         ARTICLE 1 SECTION 10 OF [SIC] OHIO CONSTITUTION,
         AND THE 14th AMENDMENT TO THE UNITED STATES
         CONSTITUTION.

         {¶8} In his sole assignment of error, Thompson argues that the trial court

erred in denying his motion for modification of sentence insofar as it should have

imposed one of the shorter prison terms set forth in R.C. 2929.14(A)(1). We

disagree.

         {¶9} R.C. 2953.21 governs petitions for post-conviction relief and permits a

criminal defendant “who claims that there was such a denial or infringement of his

rights as to render the judgment void or voidable under the Ohio Constitution or

the Constitution of the United States” to challenge his sentence.                                     R.C.

1
  This appeal was previously dismissed for failure to file a timely notice of appeal but was later reinstated
after it was discovered that Thompson’s timely notice of appeal had not been filed due to a typographical
error in the caption of the notice.

                                                    -3-
Case No. 2-15-12


2953.21(A)(1)(a). “[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 post-conviction relief as defined in R.C. 2953.21.”                             State v.

Reynolds, 79 Ohio St. 3d 158, 160 (1997).

        {¶10} A petition for post-conviction relief is subject to strict filing

requirements. Prior to March 2015, R.C. 2953.21(A)(2) required a petition for

post-conviction relief 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 * * *. 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.2

        {¶11} A trial court is without jurisdiction to entertain an untimely petition

for post-conviction relief unless the petitioner demonstrates that one of the

exceptions in R.C. 2953.23(A) applies. R.C. 2953.23(A)(1)(a) allows a trial court

to consider an untimely petition in the following situations: (1) where a petitioner

shows that he was unavoidably prevented from discovering the facts upon which

he relies to present his claims for relief; or (2) where a petitioner shows that the

United States Supreme Court has recognized a new federal or state right, after the


2
  On March 26, 2015, HB 663 took effect and extended the time for filing a petition for post-conviction
relief to (1) 365 days from the date on which the trial transcript was filed in the court of appeals in the
direct appeal of the judgment of conviction or (2) 365 days after the expiration of the time for filing the
notice of appeal, if no direct appeal is taken. R.C. 2953.21(A)(2).

                                                   -4-
Case No. 2-15-12


time period set forth in former R.C. 2953.21(A)(2) expired, that applies

retroactively to the petitioner and that is the basis of the petitioner’s claim for

relief. R.C. 2953.23(A)(1)(a). In either case, the petitioner must also show by

clear and convincing evidence that but for the constitutional error at trial, no

reasonable fact finder would have found the petitioner guilty of the offense for

which he was convicted. R.C. 2953.23(A)(2) allows a trial court to consider an

untimely petition in certain cases involving DNA testing.

         {¶12} Here, Thompson’s petition for post-conviction relief is clearly

untimely, as it was filed nearly three years after the trial transcript was filed in this

Court in Thompson’s direct appeal.                     Because Thompson failed to argue and

establish the applicability of any of the exceptions in R.C. 2953.23(A), the trial

court lacked jurisdiction to entertain his untimely petition.3

         {¶13} Accordingly, we overrule Thompson’s sole assignment of error.

         {¶14} Having found no error prejudicial to the appellant, in the particulars

assigned and argued, we affirm the judgment of the trial court.


                                                                                      Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr
3
  The trial court’s entry stated that “the [c]ourt, after considering the [m]otion and the record, finds that said
[m]otion is not well taken and the same is DENIED.” (Docket No. 127, p. 1). However, because the trial
court lacked jurisdiction to entertain Thompson’s petition, its merits should not have been considered.
Instead, Thompson’s petition should have been dismissed for lack of jurisdiction. This error does not
prejudice Thompson, however, because the petition’s outcome remains the same.

                                                      -5-
