[Cite as State v. Hopkins, 2017-Ohio-2813.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                     Court of Appeals No. E-16-072

        Appellee                                  Trial Court No. 2009-CR-520

v.

Maurice Hopkins                                   DECISION AND JUDGMENT

        Appellant                                 Decided: May 12, 2017

                                              *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.

        Maurice Hopkins, pro se.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, Maurice Hopkins, appeals from the October 1, 2016 judgment of

the Erie County Court of Common Pleas denying the motion of appellant to correct a

void judgment and sentence. For the reasons which follow, we affirm.
        {¶ 2} On appeal, appellant asserts the following single assignment of error:

               IT WAS ERROR FOR THE COURT TO DENY APPELLANT’S

        PETITION TO CORRECT VOID JUDGMENT AND SENTENCE.

        {¶ 3} In 2010, appellant was convicted following a jury trial of aggravated

burglary with a firearm specification, having a weapon while under a disability, felonious

assault with a firearm specification, and attempted murder with a firearm specification.

Appellant was also found to be a repeat violent offender. He was sentenced June 1, 2010,

to 34 years in prison. Appellant’s sentence was affirmed on appeal. State v. Hopkins, 6th

Dist. Erie No. E-10-027, 2011-Ohio-5908. On August 4, 2016, appellant filed a petition

to correct a void judgment and sentence, which the trial court “denied” on October 3,

2016.

        {¶ 4} “Where 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 postconviction

relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d

1131 (1997), syllabus, limited by State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773

N.E.2d 522, syllabus (excluding motions to withdraw a guilty plea). This statute requires

such petitions to be filed with 365 days after the date on which the trial transcript is filed

in the court of appeals unless the time limit is excused. R.C. 2953.21(A)(2). The filing

time requirement is jurisdictional, and if a petition has been untimely filed, the trial court




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cannot consider the substantive merits of the petition and must summarily dismiss it

without addressing the merits of the petition. State v. Flower, 7th Dist. Mahoning No.

14 MA 148, 2015-Ohio-2335, ¶ 12, citing State v. Beaver, 131 Ohio App.3d. 458, 461,

722 N.E.2d 1046 (11th Dist.1998).

         {¶ 5} In this case, appellant filed his appeal on June 30, 2010, and the trial

transcript was filed December 29, 2010. Therefore, his petition is untimely. The trial

court denied the motion. While, we find the trial court should have dismissed the motion

as untimely filed, rather than denying it, the trial court’s error does not warrant reversal

of the trial court judgment because appellant was not prejudiced by the error. Stammco,

L.L.C. v. United Tel. Co. of Ohio, 136 Ohio St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408,

¶ 51 (“a reviewing court should not reverse a correct judgment merely because it is based

on erroneous reasons”). Therefore, we find appellant’s sole assignment of error not well-

taken.

         {¶ 6} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Erie County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.


                                                                           Judgment affirmed.




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                                                                      State v. Hopkins
                                                                      C.A. No. E-16-072




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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