[Cite as State v. Herzberger, 2017-Ohio-491.]


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

STATE OF OHIO                                        C.A. No.       16CA010899

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
GREGORY D. HERZBERGER                                COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   09CR079694

                                 DECISION AND JOURNAL ENTRY

Dated: February 13, 2017



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Gregory D. Herzberger, appeals the judgment of the Lorain

County Court of Common Pleas, denying his “motion for resentencing.” We affirm the trial

court’s judgment.

                                                I.

        {¶2}     In 2012, Herzberger pleaded guilty to three counts of rape and three counts of

gross sexual imposition. During Herzberger’s sentencing hearing, the trial court held a sexual

offender classification hearing and stipulated that Megan’s Law controlled Herzberger’s

classification. See former R.C. 2950.09. After considering the relevant statutory factors set forth

in former R.C. 2950.09, the trial court classified Herzberger as a sexual predator. See former

R.C. 2950.01(E)(1). The trial court then sentenced Herzberger to nine years of imprisonment.

Herzberger subsequently filed a direct appeal solely contesting the trial court’s finding that he

was a sexual predator. On August 26, 2013, this Court overruled Herzberger’s sole assignment
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of error and affirmed the trial court’s classification of Herzberger as a sexual predator. See State

v. Herzberger, 9th Dist. Lorain No. 12CA010301, 2013-Ohio-3664.

       {¶3}    On November 23, 2015, Herzberger filed a pro se motion for resentencing arguing

that his prison sentence, which was imposed after H.B. 86 became effective on September 11,

2011, is contrary to law and, as such, is void as a matter of law. Herzberger requested an

evidentiary hearing to address his motion. On November 30, 2015, the trial court denied

Herzberger’s motion for resentencing without conducting a hearing.

       {¶4}    On January 4, 2016, Herzberger filed his notice of appeal to challenge the trial

court’s denial of his motion for resentencing. Herzberger raises two assignments of error for this

Court’s review.

                                                II.

                                     Assignment of Error I

       The trial Court erred and abused its discretion by denying Defendant’s
       clearly defined and supported Motion for Resentencing to correct an illegal
       sentence contrary to law without even affording [the] State [an] opportunity
       to respond or hold an evidentiary hearing.

                                     Assignment of Error II

       The trial court erred and abused its discretion in determining a sexual
       predator classification for a defendant, who is a first-time offender, and the
       facts and evidence are insufficient to support the worst of the worst
       classification.

       {¶5}    In his first and second assignments of error, Herzberger argues that the trial court

erred by denying his motion for resentencing for several reasons.               However, because

Herzberger’s motion was an untimely petition for post-conviction relief, the trial court lacked

authority to consider it and properly denied the motion.
                                                 3


       {¶6}      This Court initially questions its jurisdiction to determine the present appeal

because an untimely notice of appeal does not invoke this Court’s jurisdiction.                  See

Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), syllabus. An appeal from a final,

appealable order must typically be filed within 30 days of its entry. App.R. 4(A)(1). Here, the

trial court filed its judgment entry denying Herzberger’s motion for resentencing on November

30, 2015. It is undisputed that Herzberger did not file his notice of appeal until January 4, 2016,

35 days later.

       {¶7}      However, this case involves the trial court’s denial of a motion for resentencing,

which, as further detailed below, this Court construes as a petition for post-conviction relief.

“[A] postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral

civil attack on the judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281 (1999). App.R. 4(A)(3)

explicitly states that “[i]n a civil case, if the clerk has not completed service of the order within

the three-day period prescribed in Civ.R. 58(B), the 30-day period[] referenced in App.R.

4(A)(1) * * * begin[s] to run on the date when the clerk actually completes service.” A review of

the record in the present case indicates that service of the trial court’s order denying

Herzberger’s petition for post-conviction relief was not noted on the docket. Accordingly, the

30-day timeframe in which Herzberger was required to file his notice of appeal pursuant to

App.R. 4(A)(3) never began running. Thus, we conclude that the instant appeal is timely and

that we have jurisdiction to consider Herzberger’s appeal.

       {¶8}      Having determined that this Court has jurisdiction to consider the instant matter,

we now proceed to considering the timeliness of Herzberger’s motion. Although Herzberger

captioned his filing as a “motion for resentencing,” Herzberger’s motion is more accurately a

petition for post-conviction relief. See State v. Cortez, 5th Dist. Licking No. 15-CA-55, 2016-
                                                  4


Ohio-768, ¶ 9 (classifying appellant’s motion for resentencing as a petition for post-conviction

relief), citing State v. Reynolds, 79 Ohio St.3d 158 (1997). A petition for post-conviction relief

must be filed no later than 365 days after the day the trial transcript is filed in the direct appeal

from the judgment of conviction and sentence, or, if no direct appeal is taken, 365 days after the

expiration of the time to file an appeal. R.C. 2953.21(A)(2).1 Here, the trial transcript from

Herzberger’s direct appeal was filed on December 18, 2012. However, Herzberger did not file

his petition until November 2015, more than 365 days after the trial transcript was filed.

Consequently, his petition was untimely, and could only be considered by the trial court if

Herzberger could demonstrate the factors set forth in R.C. 2953.23(A)(1) or (2). See, e.g., State

v. Daniel, 9th Dist. Summit No. 26670, 2013–Ohio–3510, ¶ 9. A review of Herzberger’s

petition indicates that he did not argue that any of the statutory factors applied to permit the late

filing.

          {¶9}   Because Herzberger filed an untimely petition for post-conviction relief, the trial

court lacked authority to consider it. Accordingly, the trial court did not abuse its discretion in

denying Herzberger’s untimely petition and Herzberger’s assignments of error are overruled.

                                                 III.

          {¶10} Herzberger’s assignments of error are overruled and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                                Judgment affirmed.



1
  “Effective March 23, 2015, R.C. 2953.21(A)(2) ‘was amended by 2014 Sub.H.B. No. 663,
which extended the timeframe for defendants to file their motions for postconviction relief from
180 days to 365 days.’” State v. Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶
12, fn. 2, quoting State v. Worthington, 12th Dist. Brown No. CA2014–12–022, 2015-Ohio-
3173, ¶ 43, fn. 4.
                                                 5




       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 Lorain, 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



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

GREGORY D. HERZBERGER, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
