[Cite as State v. Millender, 2012-Ohio-2331.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 11 CA 63
CHARLES MILLENDER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 02 CR 268


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         May 22, 2012



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

GREGG MARX                                      DAVID A. SAMS
PROSECUTING ATTORNEY                            Box 40
JOCELYN S. KELLY                                West Jefferson, Ohio 43162
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 11 CA 63                                                    2

Wise, J.

      {¶1}   Appellant Charles F. Millender appeals from the denial of his petition for

post-conviction relief in the Court of Common Pleas, Fairfield County. Appellee is the

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

      {¶2}   On October 21, 2002, appellant pled guilty to one count of trafficking in

crack cocaine, R.C. 2925.03(A) and (C)(4)(f), with specifications, and one count of

trafficking in crack cocaine, R.C. 2925.03(A) and (C)(4)(g), with specifications. These

were counts two and three of a three-count indictment, the first count of which was

dismissed.

      {¶3}   The trial court conducted a sentencing hearing on December 5, 2002. On

count two, appellant was sentenced to a prison term of five years. On count three,

appellant was sentenced to a prison term of ten years. The two terms were ordered to

be served consecutively. The court further ordered, inter alia, that appellant pay a fine

of $10,000 on each count and that appellant forfeit his interest in a 1999 Chrysler

automobile and $14,030 in U.S. currency.

      {¶4}   Appellant appealed from his conviction and sentence; however, on March

26, 2003, this Court affirmed the decision of the Fairfield County Court of Common

Pleas. See State v. Millender, Fairfield App. No. 03CA03, 2003-Ohio-1691. The Ohio

Supreme Court subsequently declined to hear the appeal. State v. Millender, 100 Ohio

St.3d 1544, 2003-Ohio-6879.

      {¶5}   In the meantime, appellant filed a motion seeking to “dismiss mandatory

fines imposed” and to have returned to him monies seized for said fines. On

September 12, 2003, the trial court issued a judgment entry overruling appellant's
Fairfield County, Case No. 11 CA 63                                                        3


motion regarding his fines. Appellant thereupon appealed to this Court; on February

24, 2004, we affirmed the trial court’s decision to deny his motion. See State v.

Millender, Fairfield App.No. 03 CA78, 2004-Ohio-871.

        {¶6}   On September 15, 2011, appellant filed with the trial court a petition for

post-conviction relief and request for resentencing. The State filed a memorandum

contra on October 19, 2011. Appellant filed a rebuttal memorandum on October 28,

2011.

        {¶7}   On November 2, 2011, the trial court issued a judgment entry denying

appellant’s motion for post-conviction relief.

        {¶8}   On November 30, 2011, appellant filed a notice of appeal. He herein

raises the following sole Assignment of Error:

        {¶9}   “I. THE TRIAL COURT ERRED IN DENYING PETITIONER-APPELLANT

(SIC) POST-CONVICTION RELIEF IN THE FORM OF RESENTENCING TO REDUCED

AND CONCURRENT TERMS IN VIOLATION OF OHIO LAW AND THE STATE AND

FEDERAL CONSTITUTIONS.”

                                             I.

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

denying his petition for post-conviction relief to seek resentencing. We disagree.

        {¶11} The pertinent jurisdictional time requirements for a postconviction petition

are set forth in R.C. 2953.21(A)(2) as follows: “*** 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 ***.” In order for a court to recognize an untimely
Fairfield County, Case No. 11 CA 63                                                       4


postconviction petition pursuant to R.C. 2953.23(A)(1), both of the following

requirements must apply:

      {¶12} “(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.

      {¶13} “(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 * * *.”

      {¶14} A court has no jurisdiction to hear an untimely petition for postconviction

relief unless the movant meets the requirements in R.C. 2953.23(A). State v.

Demastry, Fairfield App. No. 05CA14, 2005-Ohio-4962, ¶ 15. In the case sub judice,

appellant’s direct appeal from his convictions and sentence was completed in 2003.

Clearly, his petition for post-conviction relief of September 15, 2011 is facially untimely.

Appellant, in his petition, seemed to propose that his post-conviction claim was

properly before the trial court under the second requirement of R.C. 2953.23(A)(1)(a),

because it was premised on State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 2006-

Ohio-856. In Foster, the Ohio Supreme Court declared portions of R.C. 2929.14, R.C.

2929.19 and R.C. 2929.41 unconstitutional under Apprendi v. New Jersey (2000), 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and Blakely v. Washington (2004), 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403.
Fairfield County, Case No. 11 CA 63                                                     5

      {¶15} We thus interpret appellant’s reliance on Foster as a means of invoking

the Apprendi and Blakely decisions from the United States Supreme Court as both the

procedural and meritorious grounds, under R.C. 2953.23(A)(1), for his untimely post-

conviction petition. However, this Court has previously found Foster-based arguments

to be inapplicable where a case is postured before an appellate court as an appeal

from a denial of a petition for postconviction relief. See State v. Bunting, Stark App.No.

2007CA00028, 2007-Ohio-4254, ¶ 14, citing State v. Williams, Franklin App.No. 05AP-

339, 2006-Ohio-2197, ¶ 28, citing State v. Myers, Franklin App. No. 05AP-228, 2005-

Ohio-5998, ¶ 38. Cf., also, State v. Ferguson, Tuscarawas App.No. 2005 AP 09 0066,

2006-Ohio-2263, ¶ 15. Accordingly, we find appellant’s attempt to obtain resentencing

under Foster via post-conviction relief under these circumstances was properly denied

by the trial court.

      {¶16} Appellant’s sole Assignment of Error is overruled.

      {¶17} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Fairfield County, Ohio, is hereby affirmed.

By: Wise, J.

Gwin, P. J., and

Farmer, J., concur.

                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                 JUDGES
JWW/d 0507
Fairfield County, Case No. 11 CA 63                                             6


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT




STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CHARLES MILLENDER                          :
                                           :
       Defendant-Appellant                 :         Case No. 11 CA 63




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.

       Costs assessed to appellant.




                                           ___________________________________


                                           ___________________________________


                                           ___________________________________

                                                               JUDGES
