[Cite as State v. Day, 2012-Ohio-4620.]




              IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :    C.A. CASE NO. 2012 CA 0011

vs.                                             :    T.C. CASE NO. 2008 CR 0271

CHAD LEE DAY                                    :    (CRIMINAL APPEAL FROM
                                                      COMMON PLEAS COURT)
        Defendant-Appellant                     :

                                           .........

                                          OPINION

                            Rendered on the 5th day of October, 2012.

                                           .........

Stephen K. Hall, Prosecuting Attorney, Elizabeth A. Ellis, Assistant Prosecuting
Attorney, Atty. Reg. No. 0074332, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Defendant-Appellee

Adrienne D. Brooks, Atty. Reg. No. 0078152, 36 North Detroit Street, Suite 102, Dayton,
Ohio 45385
      Attorney for Plaintiff-Appellant



                                           .........

GRADY, P.J.:

        {¶ 1} Defendant Chad Day appeals from a final order overruling his R.C. 2953.21

petition for post-conviction relief.
                                                                                             2

       {¶ 2} In July 2008, Defendant Chad Day pled guilty to aggravated burglary, R.C.

2911.11(A)(1), a felony of the first degree; burglary, R.C. 2912.(A)(4), a felony of the fourth

degree; domestic violence, R.C. 2919.25(A), a felony of the third degree; and abduction, R.C.

2905.02(A)(2), a felony of the third degree. In exchange for his pleas, the State dismissed a

count of rape, R.C. 2907.02(A)(2), a felony of the first degree. Also as part of the plea

agreement, the parties stipulated to a 12-year prison term, which the trial court imposed.

       {¶ 3} Defendant appealed, arguing that the trial court failed to merge his aggravated

burglary and burglary convictions. We vacated Defendant’s burglary conviction and affirmed

the judgment of the trial court in all other respects. State v. Day, 2d Dist. Greene No. 2008

CA 70, 2009-Ohio-7046. Because Defendant’s sentence for the burglary conviction was

ordered to be served concurrently with the sentence for the aggravated burglary conviction, his

aggregate sentence remained unchanged. Id.

       {¶ 4} In April 2010, Defendant filed a “Motion to Correct Void Sentence.” On

August 2, 2010, the trial court filed a nunc pro tunc entry acknowledging this Court’s reversal

of Defendant’s burglary conviction, and reiterating the imposition of the 12-year sentence on

the remaining convictions.

       {¶ 5} In January 2011, Defendant filed a “Petition to Vacate or Set Aside Judgment

of Conviction or Sentence.”      Regardless of what Defendant labeled this filing, it was

necessarily a petition for post-conviction relief pursuant to 2953.21. See, State v. Reynolds,

79 Ohio St.3d 158, 679 N.E.2d 1131 (1997).
                                                                                                  3

        {¶ 6} The State filed a motion to strike Defendant’s petition, which the trial court

initially overruled.   However, upon reconsideration, the trial court denied Defendant’s

petition for post-conviction relief without a hearing. Defendant appeals.

        {¶ 7} Defendant’s first assignment of error:

“THE TRIAL COURT ERRED IN ITS DECISION RE: STATE OF OHIO’S MOTION TO

RECONSIDER IN FINDING THE DEFENDANT/APPELLANT’S SENTENCE WAS NOT

VOID,     AND     THUS      HE    WAS      INELIGIBLE       TO     FILE    A    PETITION      FOR

POST-CONVICTION RELIEF; THE TRIAL COURT ALSO ERRED IN FINDING THE

SENTENCE WAS NOT EVEN VOIDABLE.”

        {¶ 8} Defendant’s second assignment of error: “THE TRIAL COURT ERRED IN

NOT GRANTING THE DEFENDANT/APPELLANT A HEARING ON HIS PETITION

FOR POST-CONVICTION RELIEF.”

        {¶ 9}   A petition for post-conviction relief “shall be filed no later than one hundred

and 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 * * * .” R.C. 2953.21(A)(2). The time bar

imposed by R.C. 2953.21(A) is jurisdictional. State v. Harden, 2d Dist. Montgomery No.

20803, 2005-Ohio-5580.

        {¶ 10} In order to confer jurisdiction on the common pleas court to consider an

untimely petition, the petitioner must make at least one of two alternative showings:

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

        petition must rely to present the claim for relief, or, subsequent to [the filing

        deadline] the United States Supreme Court recognized a new federal or state
                                                                                              4

        right that applies retroactively to persons in the petitioner’s situation, and the

        petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a).

        {¶ 11} Defendant filed a direct appeal from his convictions in Case No. 2008 CA 70.

The transcript of the trial proceedings was filed in his direct appeal on October 13, 2008. The

petition for post-conviction relief Defendant filed on January 4,2011, more than three years

later, is therefore untimely.

        {¶ 12} Defendant argues that the trial court’s August 2, 2010 nunc pro tunc entry was

a new sentencing entry that should be used in calculating the timeliness of his petition for

post-conviction relief.    The State, on the other hand, argues that because neither the

convictions upon which Defendant is imprisoned nor the sentences imposed for those

convictions were disturbed, the time for post-conviction relief has passed.

        {¶ 13} In our decision in Defendant’s direct appeal, we ordered Defendant’s burglary

and aggravated burglary convictions merged. Day, 2009-Ohio-7046. We also specifically

held that “the correction of this error will not shorten the amount of prison time that Day must

serve, because the eighteen-month sentence for burglary was ordered to be served

concurrently with the aggregate twelve-year sentence for aggravated burglary and domestic

violence.” Id. Thus, there was no need for the case to be remanded for re-sentencing.

        {¶ 14} Nunc pro tunc entries are used only to correct clerical errors, such as a mistake

or omission that is mechanical in nature and apparent on the record and which does not

involve a legal decision or judgment. State v. Brown, 136 Ohio App.3d 816, 819-820, 737

N.E.2d 1057 (3d Dist. 2000). The trial court’s nunc pro tunc entry purporting to re-sentence

Defendant was therefore improper. Further, because we modified the trial court’s judgment
                                                                                              5

of conviction in the prior appeal without ordering a remand, the trial court lacked jurisdiction

to impose a new sentence. The nunc pro tunc entry was therefore void.

       {¶ 15} Alternatively, Defendant claims that even if his petition was untimely, his trial

counsel was ineffective because he never raised as a defense that Defendant had a right to be

in his victim’s home because he lived there. However, because Defendant’s guilty plea

amounts to a complete admission of guilt to the aggravated burglary charge, Crim. R.

11(B)(1), his plea waives his ineffective assistance claim. Furthermore, we agree with the

trial court’s finding that Defendant was aware of Defendant’s residence before he entered his

guilty plea.   Therefore, Defendant has failed to demonstrate that he “was unavoidably

prevented from discovering the facts upon which the petition must rely to present the claim

for relief.” R.C. 2953.23(A)(1)(a).

       {¶ 16} For the foregoing reasons, the trial court correctly found that it lacked

jurisdiction to consider the merits of Defendant’s untimely petition and properly dismissed it.

R.C. 2953.23(A); Harden, 2005-Ohio-5580. A hearing was not required.

       {¶ 17} Defendant’s assignments of error are overruled. The judgment of the trial

court will be affirmed.




Froelich, J., And Hall, J., concur.
                             6



Copies mailed to:

Elizabeth A. Ellis, Esq.
Adrienne D. Brooks, Esq.
Hon. Michael A. Buckwalter
