[Cite as State v. Aultman, 2017-Ohio-758.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 2016-CA-14
                                                   :
 v.                                                :   Trial Court Case No. 2013-CR-188
                                                   :
 WILLIAM E. AULTMAN                                :   (Criminal Appeal from
                                                   :   Common Pleas Court)
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 3rd day of March, 2017.

                                              ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee


GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road NE, Bloomingburg,
Ohio 43106
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, J.
                                                                                         -2-




       {¶ 1} Defendant-appellant, William E. Aultman, appeals from the decision of the

Champaign County Court of Common Pleas dismissing his petition for postconviction

relief in which Aultman requested his sentence be vacated on grounds that his

constitutional rights to due process and effective assistance of counsel were violated

during his sentencing hearing. For the reasons outlined below, the judgment of the trial

court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On July 2, 2013, Aultman was charged by bill of information with two counts

of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree.

The charges arose from allegations that Aultman placed his hand on the genitalia of two

minors who were less than 13 years of age.

       {¶ 3} At his arraignment, Aultman accepted service of the bill of information,

waived the reading of the bill of information, waived his right to indictment by grand jury,

and pled guilty as charged pursuant to a plea agreement with the State. In exchange for

Aultman’s guilty plea, the State agreed not to pursue charges for sexual misconduct

against an alleged third minor victim. The State also agreed to recommend and review

a presentence investigation report prior to sentencing. In addition, the parties jointly

agreed that a prison sentence was presumed, but not mandatory, under RC.

2907.05(C)(2)(a)-(b).

       {¶ 4} After Aultman entered his guilty plea, the trial court accepted the plea,

ordered a presentence investigation, and scheduled the matter for sentencing.            At
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sentencing, the trial court classified Aultman as a Tier II sex offender and then proceeded

to consider several matters before imposing a sentence. Specifically, the trial court

considered the presentence investigation report and the statements given by counsel and

the victims’ representatives at the sentencing hearing. The trial court also considered

Aultman’s answers to various questions posed by the court at the sentencing hearing

regarding Aultman’s own history of sexual abuse as a child, his military history, the prior

instances of sexual abuse that he had admitted to committing against earlier generations

of victims, and his failure to seek treatment or counseling.        After considering these

issues, the trial court sentenced Aultman to serve five years in prison for each of his gross

sexual imposition offenses and ordered each sentence to be served consecutively for a

total prison term of ten years. The trial court also ordered Aultman to pay an aggregate

fine of $2,000 and court costs.

       {¶ 5} Aultman did not file a direct appeal from his conviction and sentence.

However, almost three years after being sentenced, on May 13, 2016, Aultman filed a

petition for postconviction relief.    In his petition, Aultman conceded his guilt, but

requested his sentence be vacated on grounds that his constitutional right to due process

was violated during the sentencing hearing when the trial court questioned him about his

failure to seek counseling. Specifically, Aultman argued that the trial court’s questions

on that topic could only be answered by a professional, not a “disturbed layman” such as

himself. Aultman also argued that his trial counsel was ineffective in failing to object to

the trial court’s line of questioning at the sentencing hearing.

       {¶ 6} On June 7, 2016, after the State filed a memorandum opposing Aultman’s

petition for postconviction relief, the trial court issued a decision dismissing the petition.
                                                                                            -4-


In dismissing Aultman’s petition, the trial court found that it lacked jurisdiction to consider

the petition because it was filed beyond the time period set forth in R.C. 2953.21(A)(2)

and it did not meet any of the exceptions to untimeliness in R.C. 2953.23(A).

       {¶ 7} Aultman now appeals from the trial court’s decision dismissing his petition for

postconviction relief, raising one assignment of error for review.



                                   Assignment of Error

       {¶ 8} Aultman’s assignment of error is as follows:

       A SENTENCING THAT REQUIRES PROFESSIONAL TESTIMONY AND

       SUCH      TESTIMONY         IS   NOT      PRESENTED         DUE      TO    THE

       INEFFECTIVENESS OF COUNSEL MUST BE VACATED.

       {¶ 9} Under his sole assignment of error, Aultman raises the same due process

and ineffective assistance claims that he raised in his petition for postconviction relief.

While Aultman concedes that his petition was not filed within the time period provided in

2953.21(A)(2), he attempts to bypass the time limitation by applying Crim.R. 32.1, which

governs motions to withdraw guilty pleas and does not contain a specific time limitation

for filing.1 See Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 9,

citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977) and State v. Bush,

96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14. In doing so, Aultman is

essentially asking this court to treat plea withdrawal motions and petitions for

postconviction relief as interchangeable remedies. We decline Aultman’s invitation.


In his appellate brief, Aultman claims he filed both a petition for postconviction relief and
1

motion to withdraw guilty plea on May 13, 2016; however, the record indicates that only
a filing captioned “Petition for Post Conviction Relief” was ever filed.
                                                                                             -5-


       {¶ 10} Crim.R. 32.1 provides that “to correct manifest injustice[,] the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw

his or her plea.” Therefore, “[a] criminal defendant can seek under Crim.R. 32.1 to

withdraw a plea after the imposition of sentence.” Bush at ¶ 14, citing Smith at paragraph

one of the syllabus.     In contrast, “ ‘[p]ostconviction relief is a means by which the

petitioner may present constitutional issues to the court that would otherwise be

impossible to review because the evidence supporting those issues is not contained in

the record of the petitioner’s criminal conviction.’ ”      State v. Clark, 2017-Ohio-120,

___N.E.3d___, ¶ 14 (2d Dist.), quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391,

¶ 37 (10th Dist.). Postconviction relief “ ‘is the exclusive remedy by which a person may

bring a collateral challenge to the validity of a conviction or sentence in a criminal case *

* *.’ ” Bush at ¶ 13, quoting R.C. 2953.21(J).

       {¶ 11} “Given that a postsentence Crim.R. 32.1 motion is not collateral but is filed

in the underlying criminal case and that it targets the withdrawal of a plea, it is not a

‘collateral challenge to the validity of a conviction or sentence.’ ” (Emphasis sic.) Id.,

citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). (Other citations

omitted.)   Accordingly, the Supreme Court of Ohio concluded that plea withdrawal

motions and petitions for postconviction relief are distinct remedies that exist

independently. Bush at ¶ 14.

       {¶ 12} In this case, it is clear that the petition filed by Aultman is not a Crim.R. 32.1

motion to withdraw guilty plea, as Aultman did not seek to withdraw his guilty plea in the

petition, nor did he request relief under Crim.R. 32.1.        Instead, Aultman specifically

requested relief under R.C. 2953.21 for alleged constitutional violations, a request that
                                                                                           -6-


was contained in a filing captioned as a “Petition for Post Conviction Relief.”

Furthermore, Aultman indicated in both his petition and his appellate brief that he was

only challenging his sentence, not his conviction, and that he was “not asking to be

absolved from his guilt.”    Accordingly, it is clear that Crim.R. 32.1 does not apply.

Aultman’s attempt to employ Crim.R. 32.1 in this appeal is nothing more than an endeavor

to bypass the law that governs petitions for postconviction relief.

       {¶ 13} That said, we now turn to the law governing petitions for postconviction

relief. “Petitions for postconviction relief are governed by R.C. 2953.21 through R.C.

2953.23. Under these statutes, any defendant who has been convicted of a criminal

offense and who claims to have experienced a denial or infringement of his or her

constitutional rights may petition the trial court to vacate or set aside the judgment and

sentence.” State v. Johnson, 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 10,

citing R.C. 2953.21(A).

       {¶ 14} R.C. 2953.21(A)(2) governs the time limitation for filing petitions for

postconviction relief, and provides, in pertinent part:

       (2) * * * If no appeal is taken, except as otherwise provided in section

       2953.23 of the Revised Code, the petition shall be filed no later than three

       hundred sixty-five days after the expiration of the time for filing the appeal.

       {¶ 15} “[T]he trial court lacks jurisdiction to consider an untimely petition for post-

conviction relief, unless the untimeliness is excused under R.C. § 2953.23(A).”

(Citations omitted.)    Johnson at ¶ 11.       R.C. 2953.23(A) “ ‘confers jurisdiction to

adjudicate an untimely postconviction petition when the petitioner shows that he was

unavoidably prevented from discovering the facts upon which he must rely to present his
                                                                                                -7-


claim for relief, or that a new federal or state right that applies retroactively to the petitioner

was recognized by the United States Supreme Court subsequent to the period prescribed

in R.C. 2953.21(A)(2), and the petition asserts a claim based upon that right.’ ” State v.

Singleton, 2d Dist. Montgomery No. 26763, 2016-Ohio-611, ¶ 15, quoting State v.

Harden, 2d Dist. Montgomery No. 20803, 2005-Ohio-5580, ¶ 9, citing R.C.

2953.23(A)(1)(a).

       {¶ 16} Specifically, R.C. 2953.23(A) provides the following:

       (A) Whether a hearing is or is not held on a petition filed pursuant to section

       2953.21 of the Revised Code, a court may not entertain a petition filed after

       the expiration of the period prescribed in division (A) of that section or a

       second petition or successive petitions for similar relief on behalf of a

       petitioner unless division (A)(1) or (2) of this section applies:

       (1) Both of the following apply:

               (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 period prescribed in

       division (A)(2) of section 2953.21 of the Revised Code or to the filing of an

       earlier petition, 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 petitioner 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 petitioner was convicted or,
                                                                                        -8-


      if the claim challenges a sentence of death that, but for constitutional error

      at the sentencing hearing, no reasonable factfinder would have found the

      petitioner eligible for the death sentence.

      (2) The petitioner was convicted of a felony, the petitioner is an offender for

      whom DNA testing was performed under sections 2953.71 to 2953.81 of

      the Revised Code or under former section 2953.82 of the Revised Code

      and analyzed in the context of and upon consideration of all available

      admissible evidence related to the inmate's case as described in division

      (D) of section 2953.74 of the Revised Code, and the results of the DNA

      testing establish, by clear and convincing evidence, actual innocence of that

      felony offense or, if the person was sentenced to death, establish, by clear

      and convincing evidence, actual innocence of the aggravating circumstance

      or circumstances the person was found guilty of committing and that is or

      are the basis of that sentence of death.

R.C. 2953.23(A)(1)-(2).

      {¶ 17} Aultman concedes, and we agree, that his petition is untimely, as it was filed

almost three years after the expiration of the time for filing a direct appeal. Therefore,

the trial court lacks jurisdiction to consider the petition unless one of the exceptions in

R.C. 2953.23(A) applies. After a thorough review of the record, we agree with the trial

court that none of the exceptions apply to the case at bar.

      {¶ 18} For instance, the exception in R.C. 2953.23(A)(1) does not apply because

Aultman was not unavoidably prevented from discovering the facts upon which his petition

relied, and the claims in Aultman’s petition are not based on a new, retroactive federal or
                                                                                        -9-

state right recognized by the United States Supreme Court. See R.C. 2953.23(A)(1)(a).

      {¶ 19} We note that “ ‘[t]he phrase “unavoidably prevented” means that a

defendant was unaware of those facts and was unable to learn of them through

reasonable diligence.’ ” State v. Rainey, 2d Dist. Montgomery No. 23851, 2010-Ohio-

5162, ¶ 13, quoting State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19.

Here, Aultman was clearly aware of the questions he was asked by the trial court at his

sentencing hearing and of his trial counsel’s failure to object to the questions concerning

his failure to seek counseling. Aultman does not argue otherwise, but instead claims that

his status as a convicted sex offender unavoidably prevented him from being able to retain

a psychologist who was willing to evaluate him (presumably to determine why he never

sought counseling). This, however, does not meet the standard in R.C. 2953.23(A)(1)(a)

since Aultman was not unavoidably prevented from discovering the facts upon which his

due process and ineffective assistance claims were based.

      {¶ 20} In addition, Aultman’s petition only challenges his sentence, and the plain

language of R.C. 2953.23(A)(1)(b) precludes a trial court from entertaining an untimely

postconviction challenge to a sentence brought by a noncapital petitioner.        State v.

Holloman, 10th Dist. Franklin No. 07AP-875, 2008-Ohio-2650, ¶ 14; State v. Hach, 9th

Dist. Summit No. 27102, 2014-Ohio-682, ¶ 8 (“ ‘R.C. 2953.23(A)(1)(b) does not extend to

sentencing errors, except for those occurring within the capital punishment context’ ”),

quoting State v. Barkley, 9th Dist. Summit No. 22351, 2005-Ohio-1268, ¶ 11. Since

Aultman is a noncapital petitioner, R.C. 2953.23(A)(1)(b) does not provide appellant a

vehicle to challenge his sentence when his petition is untimely.

      {¶ 21} The exception for untimely petitions in R.C. 2953.23(A)(2) also does not
                                                                                      -10-


apply to Aultman as no postconviction DNA testing results were performed establishing

his innocence by clear and convincing evidence. Again, Aultman does not claim he is

innocent of the charges in this case, but only takes issue with his sentence.

       {¶ 22} Because Aultman’s untimely petition for postconviction relief does not fall

under any of the exceptions in R.C. 2953.23(A), we conclude that the trial court was

without jurisdiction to consider his petition and that the court correctly dismissed

Aultman’s petition on that basis.

       {¶ 23} Aultman’s sole assignment of error is overruled.



                                      Conclusion

       {¶ 24} Having overruled Aultman’s sole assignment of error, the judgment of the

trial court is affirmed.

                                     .............



DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:

Jane A. Napier
George A. Katchmer
Hon. Nick A. Selvaggio
