[Cite as State v. Jackson, 2017-Ohio-7985.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-17-1084

        Appellee                                  Trial Court No. CR0200902473

v.

Michael L. Jackson                                DECISION AND JUDGMENT

        Appellant                                 Decided: September 29, 2017

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Michael Jackson, pro se.

                                              *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Michael L. Jackson, pro se, appeals the March 17,

2017 judgment of the Lucas County Court of Common Pleas which denied his petition

for postconviction relief. For the reasons below, we affirm.
       {¶ 2} On June 1, 2010, following no contest pleas to possession of crack cocaine

with a major drug offender specification and aggravated drug trafficking, appellant was

sentenced to 14 years of imprisonment with ten years mandatory. On direct appeal, this

court affirmed appellant’s convictions and sentence. State v. Jackson, 6th Dist. Lucas

No. L-10-1227, 2011-Ohio-494.

       {¶ 3} On March 2, 2017, appellant filed a petition for postconviction relief arguing

that the Supreme Court of Ohio’s decision in State v. Gonzales, Slip Opinion No. 2016-

Ohio-8319 (Gonzales I), necessitated that his conviction be vacated and that the state be

required to prove the weight of the crack cocaine, excluding any fillers. On March 14,

2017, appellant filed a second or “supplement” to his petition arguing the application

R.C. 2929.14, as amended by H.B. 86, which removed the distinction in criminal

penalties between crack cocaine and powdered cocaine. Appellant requested an

evidentiary hearing.

       {¶ 4} The state opposed the petition noting that the Supreme Court of Ohio had

granted reconsideration of the decision and, upon reconsideration, held that the offense

level for possession of cocaine is determined by total weight of the drug, including any

fillers. State v. Gonzales, Slip Opinion No. 2017-Ohio-777 (“Gonzales II”). The state

further argued that the petition was untimely.

       {¶ 5} On March 17, 2017, the trial court summarily denied the petition. This

appeal followed with appellant raising the following assignment of error:




2.
              Assignment of Error No. 1: The appellant’s sentence was not

       knowingly, intelligently, and voluntarily made, thereby, contrary to law in

       violation of the due process and Article I, Section 16 of the Ohio

       Constitution.

       {¶ 6} In his sole assignment of error, appellant contends that that the Supreme

Court of Ohio should not have reconsidered its decision in Gonzales I and that, based on

that decision, his plea was not knowing and voluntary. Appellant quotes extensively

from Gonzales II’s dissenting opinions in making the argument that the state’s motion for

reconsideration failed to raise an obvious error and was simply an attempt to get a second

“bite at the apple.”

       {¶ 7} We first note that “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.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶

58. Further, petitions for postconviction relief are to be filed within 365 days after the

date on which the trial transcript is filed in the court of appeals unless the time limit is

excused. R.C. 2953.21(A)(2).1 The filing time requirement is jurisdictional, and if a

petition has been untimely filed, the trial court cannot consider the substantive merits of

the petition and must summarily dismiss it without addressing the merits of the petition.




1
 Prior R.C. 2953.21(A)(2), effective July 6, 2010, provided a 180-day limit for the filing
of a postconviction petition. Appellant’s petition is untimely under either version.



3.
State v. Flower, 7th Dist. Mahoning No. 14 MA 148, 2015-Ohio-2335, ¶ 12, citing State

v. Beaver, 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (11th Dist.1998).

       {¶ 8} R.C. 2953.23(A) provides an exception to the time limit based upon whether

appellant was “unavoidably prevented” from discovering facts upon which he based his

petition or that the United States Supreme Court has recognized a new, retroactive right

and, but for the constitutional error at trial, no “reasonable factfinder” would have

convicted appellant.

       {¶ 9} Based on the Supreme Court of Ohio’s decision in Gonzales II (of which the

dissents have no precedential value), and appellant’s failure to provide any other basis for

relief or explanation for the late filing of the petition, we must find that the trial court did

not abuse its discretion when it denied appellant’s petition for postconviction relief.

Appellant’s assignment of error is not well-taken.

       {¶ 10} On consideration whereof, we find that appellant was not deprived of a fair

proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.




                                                                           Judgment Affirmed.




4.
                                                                            State of Ohio
                                                                    v. Michael L. Jackson
                                                                               L-17-1084




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       ____________________________
                                                       JUDGE
Thomas J. Osowik, J.
                                               ____________________________
James D. Jensen, P.J.                                  JUDGE
CONCUR.
                                               ____________________________
                                                       JUDGE




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