[Cite as State v. Lewis, 2014-Ohio-2224.]
                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                            LAKE COUNTY, OHIO


STATE OF OHIO,                                       :      OPINION

                 Plaintiff-Appellee,                 :
                                                            CASE NO. 2013-L-111
        - vs -                                       :

JAMES J. LEWIS,                                      :

                 Defendant-Appellant.                :


Civil Appeal from the Lake County Court of Common Pleas, Case No. 08 CR 000764.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

James J. Lewis, pro se, PID: A573284, Grafton Correctional Institution, 2500 South
Avon Beldon Road, Grafton, OH 44044 (Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     This appeal is from the Lake County Court of Common Pleas. Appellant

 James J. Lewis filed a petition for post conviction relief due to a possible violation of

 Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013). The trial court denied

 the petition because it was not timely, and even if the petition was timely, there was no

 Alleyne violation and any possible Alleyne violations were barred by res judiciata.

 Lewis timely appeals. For the following reasons, we affirm.
         {¶2}   The facts of this case are laid out in State v. Lewis, 11th Dist. Lake No.

2009-L-138, 2010-Ohio-4288. In that decision, this court affirmed Lewis’ convictions

for operating a vehicle under the influence of alcohol, with a specification of five

previous OVI convictions and two counts of aggravated vehicular assault. On January

19, 2011, the Supreme Court of Ohio declined jurisdiction over Lewis’ appeal to that

court.

         {¶3}   On August 26, 2013, Lewis filed a pro se motion for post conviction relief.

In that motion he argued that Alleyne retroactively applied to his case. According to

Lewis, at sentencing, the trial court made various findings required under R.C. 2929.14

to impose non-minimum consecutive sentences. He also claims the facts supporting

these findings were never presented to the jury.               Finally, he asserts that Alleyne

requires the jury to make the requisite findings to support a sentencing enhancement

under R.C. 2929.14.1 On October 7, 2013 the trial court denied the petition. This

appeal followed.

         {¶4}   As Lewis’ assignments of error are intertwined, we will consolidate them in

our review. In his two assignments of error, Lewis asserts that:

         {¶5}   “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.

         {¶6}   “Whether the new rule of constitutional law announced by [the] United

States Supreme Court in Alleyne v. United States 131 S. Ct. 2141, 2013, U.S. Lexis


1. Lewis does not specify the findings the sentencing judge made that a jury had to determine in his
particular case, and our review of the sentencing entry does not reveal that the sentencing judge made
findings pursuant to R.C. 2929.14. Because resolution of this issue is immaterial to our decision, we
decline to speculate as to what Lewis is referencing.


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4542 (2012), was made retroactively applicable to petitioners seeking collateral review

of their convictions.”

      {¶7}    Although Lewis has narrowly styled his assignments of error, Lewis

essentially advances the same arguments to us as he did to the trial court. Because

courts should read pro se pleadings liberally, we will not confine ourselves solely to the

issues raised in Lewis’ assignments of error. Rosen v. Chesler, 9th Dist. Lorain No.

08CA009419, 2009-Ohio-3163, ¶12, quoting Sherlock v. Myers, 9th Dist. Summit No.

22071, 2004-Ohio-5178, ¶3. The state claims that Lewis is untimely with his petition

and that in any event Alleyne is not retroactively applicable to those who seek post

conviction relief.

      {¶8}    When a petition for post conviction relief is dismissed without a hearing,

we use a de novo standard of review. State v. Johnson, 5th Dist. Guernsey No. 12 CA

19, 2013-Ohio-1398, ¶27.       R.C. 2953.21(A)(2) requires that post conviction relief

petitions 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.” The transcript was filed with this court on November 20, 2009. Neither

party contests that the 180 day window expired when Lewis filed this petition.

Therefore, in order for the petition to be timely, an exception to the 180 day window

must apply.

      {¶9}    R.C. 2953.23(A)(1) provides an exception for untimely post conviction

relief petitions. It requires that a petitioner meet both parts of a two-prong test. The

first prong requires that the petitioner was “unavoidably prevented from discovery of the

facts upon which the petitioner must rely to present the claim for relief” or, after the 180

day window to present a petition expired, “the United States Supreme Court recognized



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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.” R.C. 2953.23(A)(1)(a).

The second prong requires that, in non-death penalty cases, 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.” R.C. 2953.23(A)(1)(b).

      {¶10} Neither party disputes that Lewis does not meet the first option in the first

prong. As such, we will only concern ourselves with the second element of the first

prong. To better understand our decision on the retroactivity of Alleyne, a brief history

of its relationship to Apprendi is in order. In Apprendi v. New Jersey, 530 U.S. 466

(2000), the U.S. Supreme Court held that if finding a particular fact increased the

maximum sentence that could be imposed on the defendant, then this fact is an

element of the offense that must be submitted to the jury. Id. at 483, fn. 10, 490.

Consequently, the Supreme Court found that Apprendi’s sentence has been

unconstitutionally raised by a judge’s finding that, based on a preponderance of the

evidence, Apprendi’s crime was racially motivated. Id. at 470, 491-92. In Harris v.

United States, 536 U.S. 545 (2002), the Supreme Court declined to apply Apprendi to

situations where a judge makes a factual finding that raises the minimum possible

sentence, but does not raise the statutory maximum. In Alleyne, the Supreme Court

overturned Harris. Alleyne, 133 S. Ct. at 2155. Therefore, findings of fact that increase

the defendant’s minimum possible sentence or raise an individual’s maximum possible

sentence now must be submitted to the jury to comply with the Sixth Amendment.

      {¶11} Lewis does not submit any authority to us indicating that Alleyne should

be retroactively applied.   Accordingly, we conclude that Lewis cannot meet the



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alternate part of the first prong, and therefore, his petition is not timely and without

merit. As the Seventh Circuit succinctly explained:

      {¶12} “The declaration of retroactivity must come from the Justices. See Dodd

v. United States, 545 U.S. 353, 125 S. Ct. 2478, 162 L. Ed. 2d 343 (2005); Tyler v.

Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001). The Court resolved

Alleyne on direct rather than collateral review. It did not declare that its new rule

applies retroactively on collateral attack.

      {¶13} “Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S.

Ct. 2348, 147 L. Ed. 2d 435 (2000). The Justices have decided that other rules based

on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin,

542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). This implies that the Court

will not declare Alleyne to be retroactive. See also Curtis v. United States, 294 F.3d

841 (7th Cir. 2002) (Apprendi itself is not retroactive). But the decision is the Supreme

Court's, not ours, to make. Unless the Justices themselves decide that Alleyne applies

retroactively on collateral review, we cannot authorize a successive collateral attack

based on §2255(h)(2) or the equivalent rule for state prisoners, 28 U.S.C.

§2244(b)(2)(A).” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013).

       {¶14} Accordingly, the assignments of error are without merit. The judgment of

the trial court is affirmed.



TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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