[Cite as State v. Nolde, 2016-Ohio-636.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-15-23

        v.

THOMAS W. NOLDE,                                          OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Defiance County Common Pleas Court
                           Trial Court No. 00-CR-07916

                                      Judgment Affirmed

                           Date of Decision: February 22, 2016




APPEARANCES:

        Thomas W. Nolde, Appellant

        Russel R. Herman for Appellee
Case No. 4-15-23


ROGERS, J.

       {¶1} Defendant-Appellant, Thomas Nolde, appeals the judgment of the

Court of Common Pleas of Defiance County denying his pro-se “Motion to

Modify Sentence Pursuant to Ohio Revised Code 2941.25.” On appeal, Nolde

argues that the trial court erred in failing to hold a resentencing hearing and

consider whether his convictions were allied offenses. For the reasons that follow,

we affirm the judgment of the trial court.

       {¶2} On December 7, 2000, the Defiance County Grand Jury returned a 20-

count indictment against Nolde charging him with three counts of rape in violation

of R.C. 2907.02(A)(1)(b), a felony of the first degree; 16 counts of gross sexual

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

one count of illegal use of a minor in nudity-oriented material or performance in

violation of R.C. 2907.323(A)(3), a felony of the fifth degree. The charges arose

after multiple children reported being sexually abused by Nolde.

       {¶3} On February 2, 2001, Nolde plead guilty to two counts of rape and

five counts of gross sexual imposition and was sentenced to 25 years in prison.

Nolde did not appeal.

       {¶4} On January 29, 2015, over a decade after his conviction and sentence,

Nolde filed a “Motion to Modify Sentence Pursuant to Ohio Revised Code

2941.25” arguing that his convictions were allied offenses under the Ohio


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Supreme Court’s recent finding in State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314.

       {¶5} On November 12, 2015, the trial court dismissed Nolde’s motion

finding that it was an untimely petition for post-conviction relief. The trial court

further noted that the petition was barred by res judicata and without merit.

       {¶6} It is from this judgment that Nolde appeals, presenting the following

assignment of error for our review.

                               Assignment of Error

       THE TRIAL COURT ERRED WHEN IT DID NOT HOLD A
       HEARING UNDER R.C. 2941.25 TO CONDUCT A MERGER
       ANALYSIS AFTER THE RULING IN STATE V. JOHNSON.

                                Assignment of Error

       {¶7} In his sole assignment of error, Nolde argues that the trial court erred

in dismissing his motion to modify his sentence because it was required to hold a

resentencing hearing and consider whether his convictions were allied offenses

under Johnson. We disagree.

       {¶8} R.C. 2953.21 governs petitions for post-conviction relief and permits a

criminal defendant “who claims that there was such a denial or infringement of his

rights as to render the judgment void or voidable under the Ohio Constitution or

the Constitution of the United States” to challenge his sentence.               R.C.

2953.21(A)(1)(a). “[W]here a criminal defendant, subsequent to his or her direct


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Case No. 4-15-23


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 post-conviction relief as defined in R.C. 2953.21.”                             State v.

Reynolds, 79 Ohio St. 3d 158, 160 (1997).

        {¶9} A petition for post-conviction relief is subject to strict filing

requirements. Prior to March 2015, R.C. 2953.21(A)(2) required a petition for

post-conviction relief 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 * * *. If no appeal is
        taken * * * the petition shall be filed no later than one hundred
        eighty days after the expiration of the time for filing the appeal.1

        {¶10} A trial court is without jurisdiction to entertain an untimely petition

for post-conviction relief unless the petitioner demonstrates that one of the

exceptions in R.C. 2953.23(A) applies. R.C. 2953.23(A)(1)(a) allows a trial court

to consider an untimely petition in the following situations: (1) where a petitioner

shows that he was unavoidably prevented from discovering the facts upon which

he relies to present his claims for relief; or (2) where a petitioner shows that the

United States Supreme Court has recognized a new federal or state right, after the

time period set forth in former R.C. 2953.21(A)(2) expired, that applies


1
  On March 26, 2015, HB 663 took effect and extended the time for filing a petition for post-conviction
relief to (1) 365 days from the date on which the trial transcript was filed in the court of appeals in the
direct appeal of the judgment of conviction or (2) 365 days after the expiration of the time for filing the
notice of appeal, if no direct appeal is taken. R.C. 2953.21(A)(2).

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Case No. 4-15-23


retroactively to the petitioner and that is the basis of the petitioner’s claim for

relief. R.C. 2953.23(A)(1)(a). In either case, the petitioner must also show by

clear and convincing evidence that but for the constitutional error at trial, no

reasonable fact finder would have found the petitioner guilty of the offense for

which he was convicted. R.C. 2953.23(A)(2) allows a trial court to consider an

untimely petition in certain cases involving DNA testing.

       {¶11} Here, Nolde’s petition for post-conviction relief is clearly untimely,

as it was filed well over a decade after the expiration of the time for filing a direct

appeal. Because Nolde failed to argue and establish the applicability of any of the

exceptions in R.C. 2953.23(A), the trial court lacked jurisdiction to entertain his

untimely petition and did not err in dismissing it.

       {¶12} Accordingly, we overrule Nolde’s sole assignment of error.

       {¶13} Having found no error prejudicial to the appellant, in the particulars

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


                                                                  Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr




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