State v. Goings

[Cite as State v. Goings, 2016-Ohio-544.]

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

State of Ohio Court of Appeals No. L-15-1063

Appellee Trial Court No. CR0201202547

v.

Vashon Goings DECISION AND JUDGMENT

Appellant Decided: February 12, 2016

*****

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

Vashon Goings, pro se.

*****

SINGER, J.

{ 1} Appellant, Vashon Goings, filed an accelerated appeal from the February 5,

20151 judgment of the Lucas County Court of Common Pleas dismissing appellant’s

1 Appellant filed an appeal from the dismissal of the postconviction relief entered on “January 30, 2015.” No judgment was filed on that date, so we presume he intended to appeal the dismissal judgment entered February 5, 2015. petition for postconviction relief on the ground that the trial court lacked jurisdiction to

consider the petition. Because we find appellant’s petition was untimely filed, we affirm.

{ 2} In 2013, appellant entered a plea pursuant to North Carolina v. Alford, 400

U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). He was found guilty of the lesser

included offenses of burglary and attempt to commit felonious assault. The prosecution

entered a nolle prosequi for the final count of the indictment. Appellant was sentenced to

30 months in prison on each count, to be served consecutively. His conviction and

sentence were affirmed on appeal. State v. Goings, 6th Dist. Lucas No. L-13-1103, 2014-

Ohio-2322.

{ 3} While the appeal was pending, appellant sought postconviction relief

asserting his pretrial motion to withdraw his plea should have been granted (an issue

which was also raised on appeal) and that he had newly discovered evidence (a witness)

that would change the outcome of the case. The trial court found the petition was really a

motion for reconsideration of the trial court’s denial of appellant’s motion to withdraw

his plea prior to sentencing. The court further found the “newly-discovered evidence”

was not undiscoverable prior to trial and was not clearly exculpatory evidence. Appellant

did not appeal from this judgment.

{ 4} On August 28, 2014, appellant filed a “motion to correct sentencing to

prevent a miscarriage of justice Criminal Rule. (32C)” [sic]. In his motion, appellant

argued that the offenses were allied offenses, which should have been merged and the

sentences ordered to run concurrently. He argued he should be released on community

2. control. He also argued that the state did not nolle the third count charge for felonious

assault and the error led to his extended incarceration. The trial court classified the

motion as a second petition for postconviction relief.

{ 5} On February 5, 2015, the trial court denied the motion on the ground it was

filed more than 180 days after appellant’s conviction and lacked a showing that he was

unavoidably prevented from discovering the facts which support his petition earlier and

that, but for the constitutional error, he would have been acquitted. Appellant appeals

from this judgment and asserts the following assignments of error:

First Assignment of Error:

The trial court committed plain error by not dismissing the Burglary

count against appellant Vashon T. Goings Sr., Ohio Revised Code (ORC),

2911.12(A)(1), because of the absence of a culpable mental state.

Second Assignment of Error:

The trial court erred by accepting appellant’s Alford plea against the

“Manifest Weight of the Evidence.”

Third Assignment of Error:

The trial court abused its discretion when it determined appellant

failed to comply with ORC 2953.23(A)(1)(a) and refused to hold a hearing.

Fourth Assignment of Error:

The trial court committed “plain error” accepting appellant’s Alford

plea.

3.  Fifth Assignment of Error:

The trial court vioated [sic] Appellant’s right to Equal Protection of

the laws as guaranteed by the Fourteenth Amendment.

{ 6} Assignments of error Nos. 1, 2 and 5 attempt to raise issues unrelated to the

judgment dismissing his petition because it was untimely filed. Therefore, we need not

review these assignments of error. App.R. 12(A)(2); State v. Dunkle, 5th Dist. Licking

No. 12-CA-80, 2013-Ohio-2299, 11. Therefore, we find appellant’s assignments of

error Nos. 1, 2 and 5 not well-taken. Only assignments of error Nos. 3 and 4 relate to the

dismissal of the petition.

{ 7} In assignment of error No. 3, appellant argues that the trial court erred by

dismissing his petition without a hearing on the ground that it was untimely under R.C.

2953.23(A)(1)(a). In his argument in support of his assignment of error, however,

appellant does not present any argument relating to the timeliness of his petition. It is not

the court’s role to develop an argument, but we can consider whether the trial court erred

in dismissing the petition on the ground that it was untimely and the petitioner did not

establish the exceptions to the time limit applied. Nationstar Mtge., L.L.C. v. Mielcarek,

9th Dist. Lorain No. 15CA010748, 2016-Ohio-60, 7, quoting Cardone v. Cardone, 9th

Dist. Summit No. 18349, 1998 WL 224934, (May 6, 1998). We review such a

determination under an abuse of discretion standard. State v. Unsworth, 6th Dist. Lucas

No. L-14-1238, 2015-Ohio-3197.

4.  { 8} Once a petition for postconviction relief is filed, the trial court must first

determine if the petition is timely filed and there are substantive grounds for relief. R.C.

2953.21(C). Since the filing time requirement is jurisdictional, the court must summarily

dismiss the petition without addressing its merits if it has been untimely filed. State v.

Rodriguez, 6th Dist. Wood No. WD-14-075, 2015-Ohio-562, 6. A hearing is allowed at

the court’s discretion if necessary to make the jurisdictional determination. State ex rel.

Sherrills v. Cuyahoga Cty. Court of Common Pleas, 72 Ohio St.3d 461, 462, 650 N.E.2d

899 (1995), citing State ex rel. Jackson v. McMonagle, 67 Ohio St.3d 450, 619 N.E.2d

1017 (1993).

{ 9} In 2014 when appellant filed his petition, former R.C. 2953.21(A)(2)

(effective July 6, 2010), required that a petition for postconviction relief be filed within

180 days after the date the trial transcript is filed in the court of appeals in the direct

appeal. Appellant’s petition was filed beyond this time limit. However, a trial court may

consider an untimely filed petition if the petitioner first establishes either that (1) he “was

unavoidably prevented from discovery of the facts upon which the petitioner must rely to

present the claim for relief,” or (2) that “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.” R.C. 2953.23(A)(1)(a). Second, the

petitioner must establish “by clear and convincing evidence that, but for the 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).

5.  { 10} Appellant did not assert in his motion or in his appellate brief any facts to

establish that R.C. 2953.23(A)(1)(a) was applicable in his case. Therefore, he failed to

meet his burden under the statute to file a late petition and establish the court’s

jurisdiction to consider the merits of his petition. State v. Dunkle, 5th Dist. Licking No.

15-CA-5, 2015-Ohio-1530, 16. Therefore, we find appellant’s assignment of error

No. 3 not well-taken.

{ 11} Appellant asserts in assignment of error No. 4 that the trial court failed to

hold a hearing regarding his newly-discovered evidence before dismissing his petition.

As we discussed above, no hearing on the merits of the petition could be held when the

petition was untimely. Therefore, we find appellant’s assignment of error No. 4 not well-

taken.

{ 12} Having found that the trial court did not commit error prejudicial to

appellant, the judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

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

6.  State v. Goings C.A. No. L-15-1063

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ Stephen A. Yarbrough, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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