[Cite as State v. Hach, 2014-Ohio-682.]


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

STATE OF OHIO                                        C.A. No.       27102

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
THOMAS HACH                                          COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 1999 03 0439

                                 DECISION AND JOURNAL ENTRY

Dated: February 26, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Thomas Hach, appeals from the judgment of the Summit County Court

of Common Pleas, denying his petition for post-conviction relief. This Court affirms.

                                                 I

        {¶2}     This case has an extensive procedural history, most of which does not impact this

appeal. Therefore, we will limit our discussion to include only the relevant portion.

        {¶3}     In August 1999, Hach was convicted by jury of eleven counts of rape and ten

counts of gross sexual imposition. State v. Hach, 9th Dist. Summit No. 19772, 2001 WL 7381

(Jan. 3, 2001). This Court affirmed his convictions in 2001. Id. In August 2013, Hach filed a

petition for post-conviction relief, arguing that he was entitled to relief under a new right

recognized by the United States Supreme Court in Alleyne v. United States, 570 U.S. ___, 133

S.Ct. 2151 (2013). The trial court denied his petition. Hach now appeals and raises two
                                                 2


assignments of error for our review. To facilitate the analysis, we consolidate the assignments of

error.

                                                 II

                                Assignment of Error Number One

         WHETHER A PETITION FOR POST CONVICTION RELIEF ASSERTING A
         CLAIM OF ERROR UNDER, ALLEYNE V. UNITED STATES 131 S. CT. 2151,
         2013, U. S. LEXIS 4543 (2013), RELIES ON A “NEW RULE OF
         CONSTITUTIONAL LAW, MADE RETROACTIVE TO CASES ON
         COLLATERAL REVIEW BY THE SUPREME COURT,” WITHIN THE
         MEANING OF O.R.C.§2953.21, O.R.C.§2953.23.

                                Assignment of Error Number Two

         WHETHER THE NEW RULE OF CONSTITUTIONAL LAW ANNOUNCED
         BY THE UNITED STATES SUPREME COURT IN ALLEYNE V. UNITED
         STATES 131 S. CT. 2151, 2013, U. S. LEXIS 4543 (2013), WAS MADE
         RETROACTIVELY      APPLICABLE       TO   PETITIONERS     SEEKING
         COLLATERAL REVIEW OF THEIR CONVICTIONS.

         {¶4}   In his two assignments of error, Hach argues that the United States Supreme

Court recently recognized a “new rule” in Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151

(2013), and, in light of this new rule, the court could not have imposed the sentence that it did.

Therefore, according to Hach, he is entitled to post-conviction relief. We disagree.

         {¶5}   “Generally, this Court reviews a trial court’s denial of a [post-conviction relief]

petition for an abuse of discretion.” State v. Perry, 9th Dist. Summit No. 26766, 2013-Ohio-

4466, ¶ 7. However, if the petition is denied on the basis of an issue of law, this Court’s review

is de novo. State v. Childs, 9th Dist. Summit No. 25448, 2011-Ohio-913, ¶ 9. “Whether a

defendant’s post-conviction relief petition satisfied the procedural requirements set forth in R.C.

2953.21 and R.C. 2953.23 is an issue of law.” Id., citing State v. Samuels, 9th Dist. Summit No.

24370, 2009-Ohio-1217, ¶ 3-7. Therefore, a de novo standard of review is applicable here.
                                                  3


        {¶6}    “Where a criminal defendant, subsequent to his or her direct 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 (1997), syllabus. R.C. 2953.21 provides, in

relevant part, that:

        [a]ny 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). R.C. 2953.21(A)(2) provides, in relevant part, that, “a petition * * * 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.” Hach was convicted

in August 1999, and his conviction was affirmed by this Court in 2001. Therefore, his petition

for post-conviction relief, filed in August 2013, was untimely.

        {¶7}    A trial court may not entertain an untimely petition for post-conviction relief

unless the petitioner shows that: (1) either he or she “was unavoidably prevented from discovery

of the facts upon which the petitioner must rely to present the claim for relief, or, [after the filing

deadline], 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”; and (2) the petitioner shows, by clear and convincing evidence, that, but for the

constitutional error at trial, no reasonable fact-finder would have found the petitioner guilty.

R.C. 2953.23(A)(1)(a)-(b).
                                                 4


       {¶8}    Even assuming Hach’s argument is true, that Alleyne recognizes a new right that

applies retroactively to him, he makes no argument that “but for constitutional error at trial[] no

reasonable factfinder would have found [him] guilty of the offense[s] of which [he] was

convicted.” R.C. 2953.23(A)(1)(b). Hach merely argues that his sentences would have been

different, i.e., his sentences would have been the statutory minimum and would have run

concurrently instead of consecutively. However, “[t]he plain language of R.C. 2953.23(A)(1)(b)

does not extend to sentencing errors, except for those occurring within the capital punishment

context.” State v. Barkley, 9th Dist. Summit No. 22351, 2005-Ohio-1268, ¶ 10-11. Because

Hach’s untimely petition for post-conviction relief did not satisfy R.C. 2953.23(A)(1)(b), the

court did not err in denying his petition.

       {¶9}    Hach’s assignments of error are overruled.

                                                III

       {¶10} Hach’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       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 Summit, 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
                                                5


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.




                                                    BETH WHITMORE
                                                    FOR THE COURT



HENSAL, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

THOMAS HACH, pro se, Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
