[Cite as State v. Blanton, 2012-Ohio-3276.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.      24295

v.                                                     :            T.C. NO.    09CR1012

GREGORY E. BLANTON                                     :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellant                            :

                                                       :

                                              ..........

                                              OPINION

                         Rendered on the        20th       day of        July       , 2012.

                                              ..........

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third
Street, 5th Floor, Dayton, Ohio 45422
        Attorney for Plaintiff-Appellee

ANDREA G. OSTROWSKI, Atty. Reg. No. 0075318, 25 E. Central Avenue, Suite 4,
Springboro, Ohio 45066
       Attorney for Defendant-Appellant


                                              ..........

FROELICH, J.

        {¶ 1}     Gregory E. Blanton appeals from the trial court’s denial of his petition for
                                                                                                                                  2

post-conviction relief. For the following reasons, the trial court’s judgment will be affirmed.

                                                                   I.

         {¶ 2}         In 2003, Blanton was convicted of gross sexual imposition and sent to prison.

At the time of his conviction, Blanton was designated a sexually oriented offender, which

required him to register as a sex offender annually for 10 years.                                            While Blanton was

incarcerated, he was reclassified as a Tier II sex offender under Ohio’s version of the federal

Adam Walsh Act, S.B. 10. As a result of this reclassification, he was required to register every

180 days for 25 years.

         {¶ 3}         Blanton was released in 2008. He subsequently failed to comply with his new

registration requirements, and he was convicted, after a bench trial, of failure to verify his

residential address. In July 2009, the trial court sentenced him to community control, but his

community control was revoked several months later and he was sentenced to two years in

prison. Blanton did not timely appeal his conviction or revocation.

         {¶ 4}       In August 2010, Blanton filed a motion for a new trial, arguing that there was

insufficient evidence to convict of not verifying his address since his Tier II reclassification was

void, pursuant to State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. The

next month, he filed a petition for post-conviction relief raising the same issue. Blanton further

moved for an amended nunc pro tunc entry on the ground that the court’s sentencing entry did

not comply with Crim.R. 32(C) and thus no final judgment had been entered in his case.1

         {¶ 5}         The State moved to dismiss Blanton’s petition for post-conviction relief and his


             1
                The trial court did not explicitly rule on Blanton’s motion for a nunc pro tunc entry. However, its rulings on Blanton’s
   motion for a new trial and petition for post-conviction relief indicate that the court considered Blanton’s conviction to be final.
                                                                                              3

motion for a new trial as untimely. The State further argued that Bodyke did not apply to

convictions that had become final.

       {¶ 6}    The trial court dismissed Blanton’s petition for post-conviction relief and motion

for a new trial, indicating that it lacked the authority to grant the relief that he requested. The

court explained:

               While seeking the most expeditious avenue possible for Mr. Blanton’s

       unique circumstances to be reviewed, this Court must be mindful of the

       limitations imposed upon its authority and jurisdiction, which limitations apply

       even when they appear (as here) to impose an unjust delay. This Court * * * has

       ruled that jurisdiction to hear challenges such as Mr. Blanton’s challenge to his

       conviction under Bodyke, rests with the Second District Court of Appeals, using

       the procedural mechanism of a motion for delayed appeal. Judge Langer’s sound

       analysis [in a prior ruling from the same trial court] rests upon the distinction of

       whether Defendant’s conviction is void or merely voidable. A voidable sentence

       carried to execution is appropriately reviewed by the Court of Appeals, not the

       trial court.

               Defendant’s petition for post-conviction relief is untimely, since the

       safe-harbor provision requires a ruling by the United States Supreme Court, not

       merely the Ohio Supreme Court. R.C. 2953.23(A)(1). The State’s arguments as

       to lack of timeliness of Defendant’s post-conviction relief petition are well taken.

       So, too, Defendant’s Motion for a New Trial is untimely. Additionally, a new

       trial is not the appropriate procedural tool for review of Defendant’s conviction.
                                                                                               4

       For these reasons, the Court grants the State’s Motion to Dismiss. In doing so,

       this Court has not reached the State’s argument concerning retroactive application

       of Bodyke. This decision, order and entry is a final appealable order. In the

       event deemed otherwise, the Court finds no just reason for delay.

       {¶ 7}    Blanton appealed from the trial court’s ruling, and his original appellate counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967). Upon an initial review, we found that Blanton’s appeal was not wholly frivolous. We

agreed with the trial court that “the ultimate decision in this case may rest ‘upon the distinction of

whether Defendant’s conviction is void or merely voidable.’” We also expressed concern about

the trial court’s language that R.C. 2953.21 allows for post-conviction review only when there is

an intervening decision by the United States Supreme Court, even when there may be an

intervening decision of the Ohio Supreme Court relying on the United States Constitution. We,

therefore, permitted Blanton’s appellate counsel to withdraw and appointed new counsel.

Blanton, with new appellate counsel, now raises one assignment of error.

       {¶ 8}    After filing this appeal, Blanton sought leave to file a delayed appeal from his

2009 conviction. We denied his motion. State v. Blanton, 2d Dist. Montgomery No. 24523

(Mar. 25, 2011).

                                                 II.

       {¶ 9}    In his sole assignment of error, Blanton claims that “[t]he trial court erred in

dismissing [his] post conviction petition since his sentence was void.” Blanton argues that his

conviction was based upon an unconstitutional reclassification and that the facts were thus

insufficient to support his conviction.
                                                                                             5

       {¶ 10} In Bodyke, the Ohio Supreme Court concluded that “R.C. 2950.031 and

2950.032, which require the attorney general to reclassify sex offenders who have already been

classified by court order under former law, impermissibly instruct the executive branch to review

past decisions of the judicial branch and thereby violate the separation-of-powers doctrine. In

addition, R.C. 2950.031 and 2950.032 violate the separation-of-powers doctrine by requiring the

opening of final judgments.” Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753,

¶ 67. The court severed the reclassification provisions from S.B. 10, ordered that they may not

be applied to offenders previously adjudicated by judges under Megan’s Law, and reinstated the

classifications and community-notification and registration orders previously imposed by judges.

 Id. at ¶ 66. The supreme court has applied Bodyke to all sex offenders who were reclassified by

the attorney general under R.C. 2950.031 and 2950.032. See State v. Gingell, 128 Ohio St.3d

444, 2011-Ohio-1481, 946 N.E.2d 192 (vacating on direct appeal, pursuant to Bodyke, Gingell’s

conviction for failure to verify his address as required by S.B. 10, even though Gingell had not

challenged his reclassification).

       {¶ 11}    In July 2011, the Supreme Court of Ohio rendered its decision in State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. In that case, Williams was

indicted in 2007 for unlawful sexual contact with a minor, and he pled guilty to the charge. At his

plea hearing, Williams was informed that he would not be subject to reporting requirements.

Williams subsequently requested that he be sentenced under Megan’s Law, rather than S.B. 10,

which was in effect at the time of Williams’s sentencing in 2008. The trial court applied S.B. 10

and informed Williams that he would be designated a Tier II sex offender. Williams appealed,

arguing that S.B. 10 could not constitutionally be applied retroactively to a defendant whose
                                                                                              6

offense occurred prior to the effective date of that statute. The supreme court agreed with

Williams, holding that “S.B. 10, as applied to defendants who committed sex offenses prior to its

enactment, violates Section 28, Article II of the Ohio Constitution, which prohibits the General

Assembly from passing retroactive laws.” Williams at ¶ 21.

         {¶ 12} We have applied Bodyke and Williams in a variety of contexts. In State v. Eads,

2d Dist. Montgomery No. 24696, 2011-Ohio-6307, the defendant did not appeal from his

classification under S.B. 10, but he challenged that classification on appeal after he was

subsequently convicted for failing to verify his residential address. On direct appeal from that

conviction, we recognized that the defendant’s classification under S.B. 10 was void under

Williams, and we vacated his conviction for failing to verify his address.

         {¶ 13}   In State v. Montgomery, 2d Dist. Montgomery No. 24450, 2012-Ohio-391, the

defendant pled guilty to failure to verify his address in accordance with S.B. 10 and did not file a

direct appeal. He later moved to vacate his conviction and sentence, arguing that the trial court

should have applied Bodyke. We noted that Montgomery could not use Civ.R. 60(B) to vacate

his conviction, and that he did not meet the procedural requirements of a petition for

post-conviction relief, if his motion were construed as such. However, we declined to determine

whether Civ.R. 60(B) or R.C. 2953.21 were properly invoked, because his motion could “more

correctly be characterized as a Crim.R. 32.1 motion to withdraw his guilty plea.” Montgomery

at ¶ 15. Construed as such, we held that the trial court erred in failing to grant the motion. We

ordered that Montgomery’s conviction and sentence be vacated, and we remanded to the trial

court.

         {¶ 14} However,     in   State   v.   Caldwell, 2d Dist. Montgomery No. 24333,
                                                                                                7

2012-Ohio-1091, we held that the defendant’s motion to vacate his conviction for failing to

verify his address was properly construed as a petition for post-conviction relief. Like Blanton,

Caldwell was convicted, after a bench trial, of failure to verify after he had been reclassified

under S.B. 10. A year later, Caldwell moved to vacate his conviction, based on Bodyke. The

trial court treated the motion as a petition for post-conviction relief and dismissed it as untimely.

       {¶ 15} Upon review, we held that the trial court properly reviewed Caldwell’s motion as

a petition for post-conviction relief. We stated, “Caldwell’s motion was filed after his direct

appeal could have been taken, claimed a constitutional violation based on Bodyke, sought to

render his judgment of conviction void, and asked the trial court to vacate the judgment and

sentence. Since Caldwell’s motion meets the statutory definition of a postconviction-relief

petition, the trial court properly treated it as such.” Id. at ¶ 3. We agreed with the trial court

that Caldwell’s petition was untimely and, even if it were timely, Caldwell could have raised his

constitutional challenges on direct appeal and thus his arguments were barred by res judicata.

       {¶ 16} We also rejected Caldwell’s argument that his conviction was void and thus the

trial court had inherent authority to vacate the conviction. We distinguished Eads on the ground

that Eads was a direct appeal from a conviction for failing to verify the defendant’s address,

whereas Caldwell presented a collateral attack on the conviction. Caldwell at ¶ 13. We stated,

“[b]ecause Caldwell’s pre-Bodyke, pre-Williams conviction for violating the AWA’s registration

requirements is, at best, an erroneous exercise of jurisdiction, meaning a legal error, it may not be

collaterally attacked.” Id. at ¶ 14. We also distinguished Montgomery, noting, in part, that it

had been resolved under Crim.R. 32.1. See Caldwell at ¶15-18. We affirmed Caldwell’s

conviction; for reasons not relevant to this appeal, we reversed Caldwell’s sentence and
                                                                                                                              8

remanded for resentencing.

         {¶ 17} Blanton’s circumstances are governed by Caldwell; although his reclassification

under S.B. 10 is void under Bodyke and Williams,2 his conviction for failure to verify his address

is not. Moreover, as in Caldwell, this case is not a direct appeal from Blanton’s conviction for

failure to verify his address. Blanton was convicted after a bench trial, and he expressly filed a

petition for post-conviction relief; it would not be reasonable to construe his petition as a motion

to withdraw a plea, as we did in Montgomery. Rather, Blanton’s petition is properly addressed

as a petition for post-conviction relief, which is how he characterized it before the trial court.

         {¶ 18}       An appellate court reviews a trial court’s denial of a petition for post-conviction

relief under an abuse-of-discretion standard.                           State v. Gondor, 112 Ohio St.3d 377,

2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.                            An abuse of discretion implies an arbitrary,

unreasonable, unconscionable attitude on the part of the trial court. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶ 19}       A post-conviction proceeding is not an appeal of a criminal conviction; it is a

collateral civil attack on the judgment. Gondor at ¶ 48; State v. Steffan, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994); R.C. 2953.21(J).                             For this reason, a defendant’s petition for

post-conviction relief is not a constitutional right; the only rights afforded to a defendant in

post-conviction proceedings are those specifically granted by the legislature. Steffan at 410;

State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).

         {¶ 20}       Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C.


             2
             We note that the Attorney General’s website indicates that Blanton has been released from prison and lists him as a “(Pre
   AWA) Sexually Oriented Offender.”
                                                                                             9

2953.23. Under these statutes, any defendant who has been convicted of a criminal offense

and who claims to have experienced a denial or infringement of his or her constitutional rights

may petition the trial court to vacate or set aside the judgment and sentence. R.C. 2953.21(A).

       {¶ 21}    When a direct appeal has been taken, a petition for post-conviction relief must

be filed “no later than one hundred and eighty days after the date on which the trial transcript is

filed in the court of appeals * * *.” R.C. 2953.21(A)(2). If no direct appeal is filed, “the

petition shall be filed no later than one hundred eighty days after the expiration of the time for

filing the appeal.” Id. Blanton was convicted, after a bench trial, in July 2009 for violating the

requirement, under the Adam Walsh Act, that he verify his address every 180 days. Blanton did

not appeal his conviction, and he did not file his petition for post-conviction relief until

September 2010, more than one year later. Blanton’s petition is untimely under R.C. 2953.21.

       {¶ 22}    Pursuant to R.C. 2953.23(A), a defendant may file an untimely petition for

post-conviction relief if he was unavoidably prevented from discovering the facts upon which he

relies to present his claim, or if the United States Supreme Court recognizes a new federal or

state right that the petitioner alleges applies retroactively to his situation. The petitioner must

also show by clear and convincing evidence that, if not for the constitutional error from which he

suffered, no reasonable factfinder could have found him guilty. Id.

       {¶ 23} In this case, Blanton relies on the argument that his reclassification was

unconstitutional based on an Ohio Supreme Court decision (Bodyke – which was based on the

Ohio Constitution) rendered a year after his conviction and nine months after his revocation.

Blanton proffers no evidence that he was unavoidably prevented from discovering any facts, and

he makes no claim that the United States Supreme Court has recognized a new right that applies
                                                                                            10

to him. Although Bodyke and Williams were announced subsequent to his conviction, Blanton

knew that he had been convicted of failing to verify because he had been reclassified, and he

could have challenged his reclassification on direct appeal. See Caldwell at ¶ 5-7.

       {¶ 24} At the same time, we are troubled by the fact that had Blanton pled guilty or no

contest, he probably would have been entitled to at least a hearing on a motion to withdraw his

plea, even if he had not appealed the original conviction. See Montgomery, supra; see also State

v. Roey, 8th Dist. Cuyahoga No. 97484, 2012-Ohio-2207; State v. Smith, 10th Dist. Franklin No.

11AP-6, 2012-Ohio-465. The trial court suggested in its decision that Blanton file a motion for

delayed appeal, which he did, albeit nearly six months later. We did not articulate our reasons

for rejecting Blanton’s motion while this appeal was pending, and since the issue is not before us,

we state no opinion on whether “the procedural mechanism of a motion for a delayed appeal”

could provide relief in other cases or whether a new motion by Blanton, since Gingell and

Williams, would be successful.

       {¶ 25} The duty of an Ohio appellate court is to review the judgment of a trial court.

Ohio Constitution, Article IV, Section 3. Given the judgment before us, we must find the court

did not err in denying the post-conviction relief petition or the motion for a new trial.

       {¶ 26} Blanton’s assignment of error is overruled.

                                                 III.

       {¶ 27} The trial court’s judgment will be affirmed.

                                          ..........

CANNON, J., concurs.

FAIN, J., concurring:
                                                                                             11

       {¶ 28}     As is pointed out in Judge Froelich’s opinion for the court, a defendant has no

constitutional right to post-conviction relief; the right to post-conviction relief is granted by the

Ohio General Assembly in R.C. 2953.21 through 2953.23. Accordingly, the General Assembly

can limit that right, and it has done so by, among other things, imposing a time limit for filing

petitions for post-conviction relief.

       {¶ 29}     But the General Assembly allows an untimely petition for post-conviction relief

if it is based on a new federal or state right recognized by the United States Supreme Court that

applies retroactively to the petitioner. In allowing for this exception to the time limit, the

General Assembly makes a distinction between: (1) a petitioner who bases his petition upon a

new federal or state right recognized, retroactively, by the United States Supreme Court; and (2)

a petitioner who bases his petition upon a new federal or state right recognized, retroactively, by

the Supreme Court of Ohio. A petitioner in the first classification may obtain post-conviction

relief with an untimely petition; a petitioner in the second classification may not.

       {¶ 30}     A legislature may make classifications when enacting laws, but, even if no

suspect class is involved:

       The Equal Protection Clause requires more of a state law than nondiscriminatory

       application within the class it establishes. McLaughlin v. State of Florida, 379

       U.S. 184, 189-190, 85 S.Ct. 283, 286-287, 13 L.Ed.2d 222. It also imposes a

       requirement of some rationality in the nature of the class singled out. To be sure,

       the constitutional demand is not a demand that a statute necessarily apply equally

       to all persons. “The Constitution does not require things which are different in

       fact * * * to be treated in law as though they were the same.” Tigner v. State of
                                                                                                12

          Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124. Hence, legislation

          may impose special burdens upon defined classes in order to achieve permissible

          ends. But the Equal Protection Clause does require that, in defining a class

          subject to legislation, the distinctions that are drawn have “some relevance to the

          purpose for which the classification is made.” Baxstrom v. Herold, 383 U.S. 107,

          111, 86 S.Ct. 760, 15 L.Ed.2d 620; Carrington v. Rash, 380 U.S. 89, 93, 85 S.Ct.

          775, 778, 13 L.Ed.2d 675; Louisville Gas Co. v. Coleman, 277 U.S. 32, 37, 48

          S.Ct. 423, 425, 72 L.Ed. 770; Royster Guano Co. v. Commonwealth of Virginia,

          253 U.S. 412, 415, 40 S.Ct. 560, 561-562, 64 L.Ed. 989. Rinaldi v. Yeager, 384

          U.S. 305, 308-309, 86 S.Ct. 1497, 1499 - 1500 (1966)

       {¶ 31}       I cannot think of a rational purpose between treating a petitioner who is asserting a stat

federal right newly, and retroactively, recognized by the United States Supreme Court more favorably th

petitioner, like Blanton, who is asserting a state or federal right newly, and retroactively, recognized by

Supreme Court of Ohio. Therefore, I would find that this distinction violates the Equal Protection Claus

the Fourteenth Amendment to the United States Constitution, and allow a petitioner in Blanton’s classifica

the same opportunity to file an untimely petition for post-conviction relief that the statute allows to a petiti

who is asserting a right newly recognized by the United States Supreme Court.

       {¶ 32}       But Blanton has never raised this issue – neither in the trial court, nor in this co

Therefore, I join in the judgment of affirmance.

                                             .........

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals, sitting by assignment of the Chief Justice of
Supreme Court of Ohio).

Copies mailed to:
                                                           13


R. Lynn Nothstine
Andrea G. Ostrowski
Hon. Mary L. Wiseman

Case Name:           State of Ohio v. Gregory E. Blanton
Case No.:            Montgomery App. No. 24295
Panel:       Fain, Froelich, Cannon
Author:              Jeffrey E. Froelich
Summary:
