[Cite as State v. Pizarro, 2014-Ohio-1734.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100564




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     MIGUEL PIZARRO

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                          Case Nos. CR-07-495634-D and CR-07-500632

        BEFORE: Boyle, A.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                      April 24, 2014
FOR APPELLANT

Miguel Pizarro, pro se
Inmate No. 533-493
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1} Defendant-appellant, Miguel Pizarro, appeals from the trial court’s

judgment denying his motion for reduced punishment. He raises three assignments of

error for our review:

       1. Appellant was denied due process of law when the trial court denied his
       motion for reduced punishment pursuant to R.C. 1.58(B) and H.B. 86’s
       reenactment of amended language of R.C. 2929.41(A). Violation of the
       due process clause to the state and federal constitutions.

       2. Appellant’s sentences are unconstitutional and void where it violates
       [R.C. 2941.25(A)] and deprives appellant of his rights of due process to
       have his sentences merged according to the law as written. Violation of
       Sec. 1, Amend. 14, to the United States Constitution.

       3. The trial court[’s] disregard to hold a mandatory voir dire hearing as to
       whether under the facts in this case there were allied offenses thus the
       sentences are void.

       {¶2} Finding no merit to his appeal, we affirm.

                        Procedural History and Factual Background

       {¶3} In April 2007, Pizarro was indicted on one count of aggravated murder with

one- and three-year firearm specifications, and four counts of obstructing justice. In

September 2007, Pizarro was charged by way of information by agreement of all parties

on one count of kidnapping. Pizarro pleaded guilty to involuntary manslaughter with the

three-year firearm specification and to kidnapping. The remaining counts were nolled.

       {¶4} In September 2007, the trial court sentenced Pizarro to ten years in prison

for involuntary manslaughter and three years for the attendant firearm specification, to be
served consecutive to ten years for kidnapping, for an aggregate sentence of 23 years in

prison.

          {¶5} In June 2009, Pizarro moved to withdraw his plea, which the trial court

denied. This court affirmed the trial court’s denial of Pizarro’s motion to withdraw his

plea in State v. Pizarro, 8th Dist. Cuyahoga No. 93694, 2010-Ohio-4007.

          {¶6} On April 24, 2013, Pizarro filed a motion titled, “Motion for Reduced

Punishment pursuant to R.C. 1.58(B) and H.B. 86’s Reenactment of Amended Language

of R.C. 2929.41(A),” arguing that his consecutive sentences should be reduced under the

new laws. In May 2013, he filed an “addendum for alternative relief” to his April 2013

motion, arguing that he was improperly sentenced to allied offenses of similar import.

The trial court denied Pizarro’s motion on September 30, 2013. It is from this judgment

that Pizarro appeals.

                         Untimely Petition for Postconviction Relief

          {¶7} This court has consistently maintained:

                A motion that is not filed pursuant to a specific rule of
                      criminal procedure “must be categorized by a
                      court in order for the court to know the criteria
                      by which the motion should be judged.” Where
                      a criminal defendant, subsequent to a 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
                      postconviction relief as defined in R.C.
                      2953.21.
State v. Marks, 8th Dist. Cuyahoga No. 99474, 2013-Ohio-3734, quoting State v.

Alexander, 8th Dist. Cuyahoga No. 95995, 2011-Ohio-1380, ¶ 12; see also State v. Kelly,

8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930, ¶ 11; State v. Meincke, 8th Dist.

Cuyahoga No. 96407, 2011-Ohio-6473; State v. Reynolds, 79 Ohio St.3d 158, 160-161,

679 N.E.2d 1131 (1997).

       {¶8} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court’s judgment or sentence vacated or set aside

pursuant to a petition for postconviction relief. A defendant’s petition for postconviction

relief is a collateral civil attack on his or her criminal conviction. See State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The statute affords relief

from judgment where the petitioner’s rights in the proceedings that resulted in his

conviction were denied to such an extent the conviction is rendered void or voidable under

the Ohio or United States Constitutions. R.C. 2953.21(A); State v. Perry, 10 Ohio St.2d

175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.

       {¶9} A defendant, however, must file any motion to be considered pursuant to R.C.

2953.21 within the jurisdictional, 180-day time limit delineated in the statute. R.C.

2953.21 provides that the petition must be filed within 180 days from the filing of the trial

transcripts in the petitioner’s direct appeal or, if a direct appeal was not pursued, 180 after

the expiration of the time in which a direct appeal could have been filed. Pizarro did not

file his motion until well beyond the 180 days after the expiration of the time to file his

direct appeal.
       {¶10} R.C. 2953.23(A)(1) allows a trial court to entertain an untimely or

successive petition only if: (1) the petitioner was unavoidably prevented from discovering

the facts on which the petition is predicated, or (2) the United States Supreme Court has

recognized a new federal or state right that applies retroactively to the petitioner and the

petition asserts a claim based on that new right. R.C. 2953.23(A)(1)(a). If the petitioner

is able to satisfy one of these threshold conditions, he or she must then demonstrate that,

but for the constitutional error at trial, no reasonable factfinder would have found him or

her guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b).

       {¶11} Therefore, unless it appears from the record that Pizarro was unavoidably

prevented from discovering facts upon which he relied in his petition, or the United States

Supreme Court has recognized a new federal or state right that applies retroactively to

him, and that but for constitutional error at trial, no reasonable factfinder would have

found him guilty, we are bound to conclude the trial court was without jurisdiction to

consider his petition for postconviction relief.

                                          Analysis

       {¶12} Pizarro does not even allege, let alone establish, any of the requirements

necessary to bring an untimely petition for postconviction relief. Pizarro does not claim

that he was unavoidably prevented from discovering the facts upon which he relied in his

petition. Nor has the United States Supreme Court recognized a new federal or state

right that applies retroactively to Pizarro.       Thus, he does not meet the threshold
requirements that are necessary before a trial court can consider his petition.

Accordingly, the trial court was without jurisdiction to address his petition.

       {¶13} Even overlooking Pizarro’s procedural problems with his petition, his

arguments still fail. He argues that he should be sentenced under the provisions of H.B.

86. But H.B. 86 went into effect on September 30, 2011. State v. Steinfurth, 8th Dist.

Cuyahoga No. 97549, 2012-Ohio-3257, ¶ 13. It is not retroactive. Id. at ¶ 14 (the

sentencing amendments under H.B. 86 apply to a person who commits an offense

specified or penalized under this section on or after the effective date of H.B. 86). R.C.

1.58 does not apply to Pizarro’s sentence either. This provision expressly provides: “If

the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or

amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed,

shall be imposed according to the statute as amended.” (Emphasis added.)

       {¶14} Pizarro maintains that this court “has consistently recognized retroactivity in

[H.B.] 86.” He cites to this court’s decision in State v. Montaque, 8th Dist. Cuyahoga

No. 98135, 2012-Ohio-5512, claiming that it supports his argument that the amendments

to H.B. 86 should apply retroactively to his sentence. But in Montaque, the defendant

was sentenced five months after the effective date of H.B. 86, and thus, does not support

Pizarro’s claim. Id. at ¶ 5.

       {¶15} Pizarro further argues that his sentence should be vacated under the merger

standard announced by the Ohio Supreme Court in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061. But Pizarro was sentenced before Johnson was
decided.     As the Second Appellate District has explained, an appellant seeking to

challenge his pre-Johnson sentencing on the grounds of merger cannot rely on Johnson

      because “[a] new judicial ruling may be applied only to cases that are
      pending on the announcement date. * * * The new judicial ruling may
      not be applied retroactively to a conviction that has become final, i.e.,
      where the accused has exhausted all of his appellate remedies.”

State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, ¶ 11, quoting Ali v.

State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6.

      {¶16} Pizarro’s three assignments of error are overruled.

      {¶17} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.    The defendant’s conviction having been affirmed, any bail pending appeal is

terminated.    Case remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR
