[Cite as State v. Davis, 2015-Ohio-5182.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       15CA0004-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ERIC JOEL DAVIS                                       COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE Nos. 6777 (80CR0229)
                                                                 6852 (81CR0001)

                                  DECISION AND JOURNAL ENTRY

Dated: December 14, 2015



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Eric J. Davis, appeals the judgment of the Medina County

Court of Common Pleas denying his “Motion to Vacate Void Sentence.” This Court affirms.

                                                 I.

        {¶2}     This is the third appeal Davis has filed involving his criminal convictions and

sentence. In a prior appeal, State v. Davis, 9th Dist. Medina No. 13CA0104-M, 2014-Ohio-4122

(“Davis II”), this Court set forth the basic underlying factual and procedural history as follows:

               In 1981, Mr. Davis was convicted of multiple offenses, including counts
        of murder, arson, and aggravated burglary. Mr. Davis appealed, and this Court
        affirmed his convictions. State v. Davis, 4 Ohio App.3d 199 (9th Dist.1982).

               In 2013, Mr. Davis filed a motion in the trial court asking the court to
        vacate his sentencing entry, which he argued was void for failing to contain the
        manner of conviction: that he was found guilty by a jury. The trial court denied
        the motion in an entry dated December 5, 2013.

Davis II at ¶ 2-3.
                                                 2


       {¶3}    On appeal, this Court affirmed the trial court’s judgment denying Davis’ motion

to vacate his sentencing entry, but remanded the matter for a nunc pro tunc sentencing entry to

clarify the manner of conviction under Crim.R. 32(C). Id. at ¶ 10. On remand, the trial court

corrected Davis’ sentencing entry to specify the manner of conviction. Davis subsequently filed

a “Motion to Vacate Void Sentence” on November 18, 2014, which the trial court denied.

       {¶4}    Davis now appeals, raising one assignment of error for this Court’s review.

                                                 II.

                                       Assignment of Error

       The trial court erred and exceeded its authority, rendering the life sentence
       imposed a nullity or void, by its failure to comply with Ohio mandatory
       sentencing requirements when imposing a sentence. [sic] when Appellant was
       sentenced twice for the same offense.

       {¶5}    In his sole assignment of error, Davis argues that the trial court erred by denying

his “Motion to Vacate Void Sentence” as his sentence is contrary to law. We disagree as Davis’

motion is untimely.

       {¶6}    A vaguely titled motion, including a motion to correct or vacate a judgment or

sentence, may be construed as a petition for post-conviction relief under R.C. 2953.21(A)(1)

where (1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of

constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation of the

judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Davis’ motion meets

these four requirements. Accordingly, we determine that the trial court correctly construed

Davis’ “Motion to Vacate Void Sentence” as a petition for post-conviction relief. See State v.

Caldwell, 3d Dist. Paulding No. 11-05-07, 2005-Ohio-5375, ¶ 9.

       {¶7}    Pursuant to former R.C. 2953.21(A)(2), a petition for post-conviction relief must

be filed no later than 180 days after the day the trial transcript is filed in the direct appeal from
                                                  3


the judgment of conviction and sentence, or, if no direct appeal is taken, 180 days after the

expiration of the time to file an appeal.1 Additionally, R.C. 2953.23(A) precludes trial courts

from “entertain[ing]” untimely petitions for post-conviction relief, unless one of the statute’s

exceptions applies. For the purposes of this appeal, only R.C. 2953.23(A)(1)’s exception could

potentially apply and it provides that both of the following conditions must exist for a trial court

to entertain an untimely petition for post-conviction relief:

       (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 [time limitation], 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 petition 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 petition was convicted[.]

“A defendant’s failure to either timely file a petition for post-conviction relief or meet his burden

under R.C. 2953.23(A)(1) deprives a trial court of jurisdiction to entertain the petition.” State v.

Taylor, 9th Dist. Lorain No. 14CA010549, 2014-Ohio-5738, ¶ 9.

       {¶8}    Here, the record reveals that the trial transcript was filed in Davis’ direct appeal in

August of 1981. Davis could have filed his petition at any time from 1981 until 1996, when the

180-day deadline was first adopted. However, Davis did not file the instant petition for post-

conviction relief until November 18, 2014, well beyond the statutorily permitted time-frame for

doing so. See former R.C. 2953.21(A)(2). Moreover, Davis has not argued on appeal that either

of the exceptions set forth in R.C. 2953.23(A) is applicable to his case. Therefore, we conclude

that Davis’ petition for post-conviction relief is untimely.       As such, the trial court lacked

       1
          2014 Am.S.B. No. 361 increased R.C. 2953.21(A)(2)’s time limitation for filing a post-
conviction relief petition to 365 days. Since the effective date of S.B. 361 postdates the filing of
Davis’ motion and the trial court’s ruling, we rely on the former time limitation. State v. Heid,
4th Dist. Scioto No. 14CA3655, 2015-Ohio-1467, ¶ 18.
                                                 4


jurisdiction to entertain Davis’ motion and we determine that the trial court did not err in denying

it. See State v. Stepler, 9th Dist. Summit No. 23354, 2006-Ohio-6913, ¶ 9.

       {¶9}    Davis’ assignment of error is overruled.

                                                III.

       {¶10}    Davis’ sole assignment of error is overruled and the judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
                                      5


HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

ERIC JOEL DAVIS, pro se, Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
