[Cite as State v. Settles, 2017-Ohio-8353.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                 CASE NO. 13-17-09

        v.

CRAIG L. SETTLES,                                           JUDGMENT
                                                              ENTRY
        DEFENDANT-APPELLANT.




                  Appeal from Seneca County Common Pleas Court
                            Trial Court No. 97-CR-0092

                                        Judgment Affirmed

                             Date of Decision: October 30, 2017




APPEARANCES:

        Alex Kochanowski for Appellant

        Derek W. DeVine for Appellee
Case No. 13-17-09


PRESTON, P.J.

         {¶1} Defendant-appellant, Craig L. Settles (“Settles”), appeals the February

28, 2017 judgment entry of the Seneca County Court of Common Pleas dismissing

his petition for post-conviction relief. For the reasons that follow, we affirm.

         {¶2} In 1997, Settles was convicted of murder with a firearm specification

and sentenced to “an indefinite term of fifteen (15) years to life as to the charge of

MURDER and a term of three (3) years as a mandatory and consecutive term * * *

due to the defendant having a firearm.” (Doc. Nos. 211, 212). Settles appealed the

trial court’s judgment entry of sentence.1 See State v. Settles, 3d Dist. Seneca No.

13-97-50, 1998 WL 667635, *1 (Sept. 30, 1998). In that direct appeal, we affirmed

the judgment of the trial court. Id. at *8.

         {¶3} On August 8, 2016, Settles filed a “Petition for Writ of Habeas Corpus

Pursuant to Ohio Revised Code 2953.21.” (Doc. No. 235). In his “petition,” Settles

requested “vacating the sentence imposed” by the trial court. (Id. at 6). As grounds

for the requested relief, Settles alleged that his “Eighth and Fourteenth Amendment

Right [sic] to freedom from cruel and unusual punishment as guaranteed under the

Ohio and United States Constitutions” were denied. (Id. at 1). Additionally, Settles

stated as a ground for relief that he received ineffective assistance of trial counsel.



1
  In Settles’ direct appeal from his convictions and sentence, this court recited much of the factual and
procedural background of this case, and we will not duplicate those efforts here. See State v. Settles, 3d Dist.
Seneca No. 13-97-50, 1998 WL 667635 (Sept. 30, 1998).

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(Id.). The State, treating Settles’ petition as a petition for post-conviction relief,

filed its memorandum in opposition to Settles’ petition on September 6, 2016. (Doc.

No. 238). On September 16, 2016, Settles filed his reply to the State’s memorandum

in opposition to his petition. (Doc. No. 239).

       {¶4} Treating Settles’ petition as a petition for post-conviction relief, the trial

court dismissed Settles’ petition on February 28, 2017. (Doc. No. 241).

       {¶5} On March 27, 2017, Settles filed a notice of appeal. (Doc. No. 242).

He raises three assignments of error for our review.             We will address the

assignments of error together.

                               Assignment of Error I

       Mr. Settles’ Appeal Must Be Considered on its Merits.

                               Assignment of Error II

       The Trial Court Erred in Denying Mr. Settles’ Petition for a Writ
       of Habeas Corpus When it Failed to Find That Mr. Settles’s [sic]
       Right to Be Free from Cruel and Unusual Punishment Pursuant
       to the Eighth and Fourteenth Amendments to the United States
       Constitution Was Violated When Mr. Settles was Sentenced to a
       Disproportionate Sentence Despite His Lessened Culpability.

                              Assignment of Error III

       The Trial Court Erred in Failing to Find That Mr. Settles
       Received Ineffective Assistance of Trial Counsel in violation of his
       Sixth And Fourteenth Amendment Rights and as a Result, Mr.
       Settles was denied Due Process and a Fair Trial under the Fifth
       and Fourteenth Amendments to the Ohio and United States
       Constitutions.


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Case No. 13-17-09


       {¶6} In his first assignment of error, Settles argues that the trial court erred

by denying his “petition for a writ of habeas corpus” because his “sentence is void

as being unconstitutional.” (Appellant’s Brief at 11-12). In his second assignment

of error, Settles argues that the trial court erred by denying his petition because his

sentence violates the “Eighth and Fourteenth Amendments of the Ohio and United

States Constitutions” under Graham v. Florida, Miller v. Alabama, and

Montgomery v. Louisiana. (Appellant’s Brief at 11, 18). 560 U.S. 48, 130 S.Ct.

2011 (2010); 567 U.S. 460, 132 S.Ct. 2455 (2012); ___ U.S. ___, 136 S.Ct. 718

(2016). In his third assignment of error, Settles argues that the trial court erred by

denying his petition because he received the ineffective assistance of trial counsel.

       {¶7} As an initial matter, we must address Settles’ erroneous understanding

of petitions for a writ of habeas corpus and post-conviction relief. Writs of habeas

corpus are civil actions and cannot be filed in criminal actions. See Fuqua v.

Williams, 100 Ohio St.3d 211, 2003-Ohio-5533, ¶ 7 (“under Ohio law, state writ

actions are civil actions”). Since Settles’ petition was filed in his criminal case and

cited R.C. 2953.21—Ohio’s post-conviction-relief statute—the State and the trial

court treated Settles’ petition as a petition for post-conviction relief. We do the

same. See State v. Snuggs, 3d Dist. Henry Nos. 7-16-03, 7-16-05, 2016-Ohio-5466,

¶ 4 (“‘When a post-judgment motion in a criminal case seeks the vacation of the

imposed sentence on the grounds that a constitutional violation occurred * * *, the


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Case No. 13-17-09


defendant’s motion will be deemed a petition for post-conviction relief.’”), quoting

State v. Osco, 11th Dist. Portage No. 2014-P-0010, 2015-Ohio-45, ¶ 13, and citing

State v. Reynolds, 79 Ohio St.3d 158 (1997) and State v. Timmons, 10th Dist.

Franklin No. 11AP-895, 2012-Ohio-2079, ¶ 6.

       {¶8} As we noted above, “R.C. 2953.21 governs petitions for post-conviction

relief.” State v. Wine, 3d Dist. Auglaize No. 2-15-07, 2015-Ohio-4726, ¶ 10, citing

State v. Kinstle, 3d Dist. Allen No. 1-12-32, 2013-Ohio-850, ¶ 10. The statute sets

forth who may petition for post-conviction relief:

       Any person who has been convicted of a criminal offense * * * and

       who claims that there was such a denial or infringement of the

       person’s rights as to render the judgment void or voidable under the

       Ohio Constitution or the Constitution of the United States * * * may

       file a petition in the court that imposed sentence, stating the grounds

       for relief relied upon, and asking the court to vacate or set aside the

       judgment or sentence or to grant other appropriate relief.         The

       petitioner may file a supporting affidavit and other documentary

       evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(a).

       {¶9} The version of the statute in effect at the time Settles committed the

underlying offense sets forth the time requirements for filing a petition for post-


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conviction relief and provides, in relevant part, “[a] petition under division (A)(1)

of this section shall be filed no later than one hundred 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 or adjudication.” R.C. 2953.21(A)(2) (1996) (current

version at R.C. 2953.21(A)(2) (2017)). A trial court lacks jurisdiction to entertain

an untimely petition for post-conviction relief unless the defendant demonstrates

that one of the R.C. 2953.23(A) exceptions applies. State v. Martin, 10th Dist.

Franklin No. 17AP-6, 2017-Ohio-5657, ¶ 9; R.C. 2953.23(A) (1995) (current

version at R.C. 2953.23(A) (2017)).

       {¶10} A trial court may not entertain an untimely post-conviction petition

unless the petitioner initially demonstrates either (1) he was unavoidably prevented

from discovering the facts necessary for the claim for relief, or (2) the United States

Supreme Court recognized a new federal or state right that applies retroactively to

persons in the petitioner’s situation. R.C. 2953.23(A)(1)(a), (b) (1995) (current

version at R.C. 2953.23(A)(1)(a) (2017)). “If the petitioner is able to satisfy one of

these threshold conditions, he must then demonstrate by clear and convincing

evidence that, but for the constitutional error at trial or the sentencing hearing, no

reasonable fact-finder would have found him guilty of the offenses.” State v.

Cunningham, 3d Dist. Allen No. 1-15-61, 2016-Ohio-3106, ¶ 13; R.C.

2953.23(A)(2) (1995) (current version at R.C. 2953.23(A)(1)(b) (2017)).


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       {¶11} “‘“[A] trial court’s decision granting or denying a postconviction

petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of

discretion; a reviewing court should not overrule the trial court’s finding on a

petition for postconviction relief that is supported by competent and credible

evidence.”’” State v. Baker, 3d Dist. Auglaize No. 2-16-07, 2016-Ohio-5669, ¶ 10,

quoting State v. Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-Ohio-2309, ¶ 7,

quoting State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58. An abuse of

discretion implies the trial court acted unreasonably, arbitrarily, or unconscionably.

State v. Adams, 62 Ohio St.2d 151, 157 (1980).

       {¶12} The trial court did not abuse its discretion by dismissing Settles’

petition for post-conviction relief. Settles’ statutory deadline for filing a petition for

post-conviction relief was 180 days after the date on which the trial transcripts were

filed in this court in his direct appeal. The trial transcripts in Settles’ direct appeal

were filed on March 27, 1998. Settles had until September 24, 1998 to file his

petition for post-conviction relief. Settles did not file his petition for post-conviction

relief until August 8, 2016, many years after his deadline passed. Thus, Settles’

petition is untimely. See Martin at ¶ 8. As such, the trial court lacked jurisdiction

to consider Settles’ untimely petition for post-conviction relief unless he

demonstrated that one of the exceptions in R.C. 2953.23(A)(1)(a) or (b) applies. Id.

See also Baker at ¶ 15.


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       {¶13} Settles’ petition cites two reasons that his petition meets the exceptions

in R.C. 2953.23(A)—namely, (1) that the United States Supreme Court issued cases

recognizing new federal and state rights that retroactively apply to his situation and

(2) that he received the ineffective assistance of trial counsel. Under Settles’ first

reason why his petition meets the statutory-timeliness exception, Settles claims that

the United States Supreme Court issued cases announcing new and federal state

rights that retroactively apply to individuals in his situation. According to Settles,

those cases are Graham, Miller, and Montgomery. 560 U.S. 48; 567 U.S. 460; ___

U.S. ___, 136 S.Ct. 718.

       {¶14} In Graham, the United States Supreme Court held that the Eighth

Amendment to the United States Constitution prohibits the imposition of sentences

of life imprisonment without parole, or their equivalents, on juvenile non-homicide

offenders. State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, ¶ 35, citing

Graham at 74. Under Miller, “[a] court, in exercising its discretion under R.C.

2929.03(A), must separately consider the youth of a juvenile offender as a

mitigating factor before imposing a sentence of life without parole.” State v. Long,

138 Ohio St.3d 478, 2014-Ohio-849, paragraph one of the syllabus, citing Miller.

Finally, “Montgomery involved the application of the court’s decision in Miller

prohibiting the automatic imposition of a life-without-parole sentence on a

defendant who had committed a homicide as a juvenile.” Moore at ¶ 98, citing


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Montgomery at 734. See also State v. Russell, 10th Dist. Franklin No. 16AP-542,

2017-Ohio-2871, ¶ 24.

       {¶15} “Generally, a new decision does not apply to convictions that were

final when the decision was announced.” Moore at ¶ 97. However, the Supreme

Court of the United States held in Montgomery that “‘courts must give retroactive

effect to new substantive rules of constitutional law. Substantive rules include * *

* “rules prohibiting a certain category of punishment for a class of defendants

because of their status or offense.”’” Id., quoting Montgomery at 728, quoting Penry

v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934 (1989). Further, “‘when a new

substantive rule of constitutional law controls the outcome of a case, the

Constitution requires state collateral-review courts to give retroactive effect to that

rule.’” Id. at ¶ 98, quoting Montgomery at 729.

       {¶16} Although Graham, Miller, and Montgomery were issued after Settles

was sentenced and involve substantive rules of constitutional law that would apply

retroactively, Settles’ sentence does not fall under the purview of those cases. See

id. at ¶ 97-98 (noting that Graham, Miller, and Montgomery involve substantive

rules of constitutional law that can apply retroactively). Indeed, Settles, who was a

juvenile at the time the murder offense was committed, was not sentenced to life-

without-parole or an equivalent sentence. Rather, Settles was sentenced to an

indefinite term of 15 years to life, with an additional 3 years incarceration for the


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firearm specification. As such, none of the cases that Settles directs us to establish

a new right that applies to Settles’ situation. See Russel at ¶ 24. Therefore, Settles’

argument does not meet the timeliness exception for cases issued recognizing new

federal or state rights that retroactively apply to his situation.

       {¶17} In his ineffective-assistance-of-trial-counsel argument, Settles argues

that his trial counsel was ineffective for failing to: (1) “Obtain An Expert Mental

Evaluation [and] Present any of the Highly Relevant Mitigating Factors at Trial or

Sentencinge [sic]”; (2) “Argue that Juvenile Rule 30 required that a Juvenile be 15

years old in order for the Juvenile Court to Consider Whether the case Should Be

Transferred to the Court of Common Pleas”; and (3) “Object to, and Ultimately

Move for a Mistrial, Based on the Introduction of Perjured Testimony from Multiple

Witnesses Who Testified on the State’s Behalf.” (Doc. No. 235).

       {¶18} “‘“The phrase ‘unavoidably prevented’ means that a defendant was

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

diligence.”’” State v. Aultman, 2d Dist. Champaign No. 2016-CA-14, 2017-Ohio-

758, ¶ 19, quoting 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. Settles’ ineffective-assistance-of-trial-counsel allegations pertain to

matters that occurred at or before trial. Settles offers no argument that he was

unavoidably prevented from discovering the alleged ineffectiveness of his trial


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counsel—that is, Settles makes no argument that he was unaware of those facts or

unable to learn of them from reasonable diligence.          Rather, those facts were

available to him at the time of trial. See State v. Russell, 10th Dist. Franklin No.

05AP-391, 2006-Ohio-383, ¶ 9 (noting that Russell’s ineffective-assistance-of-

counsel claims were “based on facts and circumstances that occurred during his

trial” and that because he “was present at his trial and had knowledge of all these

facts and circumstances as they happened,” Russell failed to establish the

applicability of any of the statutory timeliness exceptions); Rainey at ¶ 18. See also

State v. Davis, 8th Dist. Cuyahoga No. 88189, 2007-Ohio-1305, ¶ 11. Further,

because those facts were available to Settles at the time of trial, he could have raised

his ineffective-assistance argument in his direct appeal, but did not. See Settles,

1998 WL 667635. For these reasons, Settles failed to show that he was unavoidably

prevented from discovering his trial counsel’s alleged ineffective assistance. See

Aultman at ¶ 19; State v. Eicholtz, 2d Dist. Clark No. 13-CA-100, 2014-Ohio-3837,

¶ 22. Accordingly, Settles’ ineffective-assistance argument does not meet the

timeliness exception under the statute.

       {¶19} For these reasons, the trial court’s conclusion that Settles’ petition is

untimely is supported by competent, credible evidence. As such, the trial court did

not abuse its discretion by dismissing Settles’ petition for post-conviction relief.

       {¶20} Settles’ assignments of error are overruled.


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       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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