[Cite as State v. Nelms, 2015-Ohio-3202.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 14 CAA-11-0073
DAVID NELMS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 12 CRI 09 0362


JUDGMENT:                                      Dismissed



DATE OF JUDGMENT ENTRY:                        August 10, 2015



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CAROL HAMILTON O'BRIEN                         WILLIAM T. CRAMER
PROSECUTING ATTORNEY                           470 Olde Worthington Road
DOUGLAS N. DUMOLT                              Suite 200
ASSISTANT PROSECUTOR                           Westerville, Ohio 43082
140 North Sandusky Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 14 CAA-11-0073                                                2

Wise, J.

      {¶1}. Appellant David Nelms appeals the decision of the Court of Common

Pleas, Delaware County, which denied his petition for post-conviction relief. Appellee is

the State of Ohio. The relevant facts leading to this appeal are as follows.

      {¶2}. In September 2012, the Delaware County Grand Jury indicted Appellant

Nelms on one count of engaging in a pattern of corrupt activity ("EPCA"), one count of

trafficking in persons, one count of trafficking in heroin, one count of possession of

heroin, five counts of compelling prostitution, and eight counts of promoting

prostitution. Fourteen of the counts included a human trafficking specification pursuant

to R.C. 2941.1422.

      {¶3}. On February 21, 2013, appellant filed a motion to dismiss for lack of

proper venue, claiming all but one of the alleged offenses did not occur in Delaware

County. The trial court conducted a hearing on the motion to dismiss on March 15,

2013. Via judgment entry filed March 19, 2013, the court denied the motion.

      {¶4}. On May 20, 2013, appellant filed a motion to suppress evidence, arguing

that the search warrant affidavits utilized by the investigating police officers did not

provide a basis for probable cause. The next day, the trial court issued a judgment

entry finding the motion to suppress had been untimely filed, and denying same.

      {¶5}. On June 11, 2013, appellant appeared before the trial court and pled no

contest to the EPCA count and the heroin possession counts, pursuant to a plea

agreement with the State. The remaining counts, including the specifications, were

dismissed. Via judgment entry filed June 12, 2013, the trial court found appellant guilty.
Delaware County, Case No. 14 CAA-11-0073                                                 3


The trial court thereafter sentenced appellant to an aggregate term of twelve years in

prison.

       {¶6}. Appellant thereupon filed a direct appeal to this Court, raising in the single

assigned error his claim that the trial court lacked subject matter jurisdiction because

the crimes alleged were committed in Franklin County, not Delaware County. This

Court overruled the assignment of error, finding that pursuant to R.C. Chapter 2939

and R.C. 2901.12(H), the trial court's venue and the grand jury's jurisdiction were

proper in Delaware County. See State v. Nelms, 5th Dist. Delaware No. 13 CAA 07

0055, 2014-Ohio-3316, issued July 28, 2014. Appellant then sought review in the Ohio

Supreme Court. On February 18, 2015, however, the Court declined to accept

jurisdiction. See State v. Nelms, 141 Ohio St.3d 1475, 25 N.E.3d 1081, 2015-Ohio-

554.

       {¶7}. On April 18, 2014, while his aforesaid direct appeal was pending,

appellant filed a pro se petition for post-conviction relief. Appellant therein set forth

three arguments in support. First, he alleged his trial counsel was constitutionally

deficient for failing to properly demonstrate to the trial court the alleged lack of venue.

Secondly, he alleged his trial counsel failed to timely file a motion to suppress evidence

obtained via search warrants. Finally, he alleged trial counsel was not prepared for

various hearings, referencing counsel's motion to withdraw as counsel.

       {¶8}. On April 28, 2014, the State filed a memorandum contra appellant's PCR

petition.

       {¶9}. On May 20, 2014, appellant filed a "reply motion" regarding the State's

memorandum contra.
Delaware County, Case No. 14 CAA-11-0073                                                   4


     {¶10}. On June 30, 2014, the trial court issued a judgment entry denying

appellant's PCR petition without a hearing.

     {¶11}. Appellant filed a pro se notice of appeal on August 1, 2014. That appeal

was designated as case number 14CAA080043 in this Court. However, via judgment

entry dated August 21, 2014, we dismissed that appeal as untimely under the thirty-day

rule of App.R. 4(A). Appellant, via counsel, sought reconsideration of said dismissal,

which we denied on October 27, 2014.

     {¶12}. Appellant, again via counsel, then filed a new notice of appeal on

November 4, 2014 with a request for leave to file a delayed appeal under App.R. 5(A).

On December 15, 2014, this Court granted leave to appeal under the present case

number, 14CAA110073.

     {¶13}. Appellant now raises the following sole Assignment of Error:

     {¶14}. “I.   THE TRIAL COURT VIOLATED THE STATE AND FEDERAL

CONSTITUTIONS, AND R.C. 2953.21, BY DENYING APPELLANT'S PETITION FOR

POST-CONVICTION RELIEF WITHOUT FIRST HOLDING AN EVIDENTIARY

HEARING.”

                                                I.

     {¶15}. In his sole Assignment of Error, appellant contends the trial court erred

and violated his constitutional rights by denying his PCR petition without holding a

hearing.

     {¶16}. It is well-settled that a petition for post-conviction relief brought pursuant to

R.C. 2953.21 will be granted only where the denial or infringement of constitutional

rights is so substantial as to render the judgment void or voidable. State v. Jackson,
Delaware County, Case No. 14 CAA-11-0073                                                 5


Delaware App.Nos. 04CA–A–11–078, 04CA–A–11–079, 2005–Ohio–5173, ¶ 13, citing

State v. Walden (1984), 19 Ohio App.3d 141, 146, 483 N.E.2d 859. A petition for post-

conviction relief does not provide a petitioner a second opportunity to litigate his or her

conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the

petition. State v. Wilhelm, Knox App.No. 05–CA–31, 2006–Ohio–2450, ¶ 10, citing

State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819.

      {¶17}. However, before we can consider the merits of the within appeal, we must

consider our jurisdiction to further proceed. “Where an untimely appeal has been filed,

an appellate court lacks jurisdiction to consider the merits, and the appeal must be

dismissed.” State v. Myers, 9th Dist. Wayne No. 08CA0041, 2009–Ohio–2082, ¶ 7.

      {¶18}. Appellant herein has tried to overcome the jurisdictional timeliness barrier

of App.R. 4(A) by relying on App.R. 5(A), which allows for seeking leave to pursue a

delayed appeal regarding, inter alia, "criminal proceedings." However, the Ohio

Supreme Court, in State v. Nichols (1984), 11 Ohio St.3d 40, 463 N.E.2d 375, held that

a petition for post-conviction relief is a civil action to which an App.R. 5(A) motion for

delayed appeal does not apply.

      {¶19}. While we recognize the parties in the case sub judice have already duly

briefed this case, we cannot ignore the clear holding of Nichols.

      {¶20}. Accordingly, we hold the present appeal was improvidently allowed and

must be dismissed for want of appellate jurisdiction.
Delaware County, Case No. 14 CAA-11-0073                                         6


      {¶21}. For the reasons stated in the foregoing opinion, the appeal of the

judgment of the Court of Common Pleas, Delaware County, Ohio, is hereby dismissed.


By: Wise, J.

Hoffman, P. J., and

Delaney, J., concur.




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