[Cite as State v. Holland,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 2011-CAO-122 BRIAN E. HOLLAND : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 10CR628

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: March 28, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH OSWALT BRIAN E. HOLLAND PRO SE Licking County Prosecutor #647-963 BECI BY: JUSTIN T. RADIC P.O. Box 540 20 South Second St., 4th Floor St. Clairsville, OH 43950 Newark, OH 43055 [Cite as State v. Holland,

.]

Gwin, P.J.

{1} Defendant-appellant Brian E. Holland appeals a judgment of the Court of

Common Pleas of Licking County, Ohio, which found his petition to vacate or set aside

judgment of conviction or sentence is untimely and a duplication of his direct appeal.

Appellant assigns two errors to the trial court:

{2} “I. TRIAL COURT ERRORED [SIC] WHEN IT DISMISSED PETITION FOR

POST CONVICTION RELIEF O.R.C. 2953.21.

{3} “II. TRIAL COURT ERRORED [SIC] WHEN IT RULED THAT

PETITIONER’S DIRECT APPEAL AND POST CONVICTION PETITION ARE A

DUPLICATION OF EACH OTHER.”

{4} The State concedes appellant’s petition for post-conviction relief was filed

within the time required by R.C. 2953.21 (A)(2).

{5} Appellant argues the trial court erred in not granting him an evidentiary

hearing on the merits of his motion. An evidentiary hearing is not automatically required

for every petition seeking post-conviction relief. State v. Gondor,

,

2006–Ohio–6679, at ¶ 51. While a trial court does not have jurisdiction to review an

untimely petition unless it meets with certain exceptions, if it is timely, the court must

determine if the petition sets forth sufficient operative facts to establish substantive

grounds for relief. R.C. 2953.21(G). The statute requires a court to make findings of

fact and conclusions of law if it finds there are no grounds for granting relief.

{6} The trial court found the petition was untimely, and did not make findings of

fact and conclusions of law. Because we find the petition was filed in a timely manner,

we reverse and remand with instructions for the court to review merits of the petition Licking County, Case No. 2011-CAO-122 3

and determine if a hearing is necessary. If the court determines no hearing is necessary

it should make the appropriate findings of fact and conclusions of law.

{7} The first assignment of error is sustained. The second assignment of error

is premature.

{8} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is reversed, and the cause is remanded to the court for further

proceedings in accord with law and consistent with this opinion.

By Gwin, P.J., and

Wise, J., concur

Hoffman, J., dissents

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE

WSG:clw 0321 Licking County, Case No. 2011-CAO-122 4

Hoffman, J., dissenting

{¶9} I respectfully dissent from the majority opinion.

{¶10} The trial court found Appellant’s petition was a duplication of his direct

appeal. Although sparse, such finding nevertheless can support its “undesignated”

legal conclusion Appellant’s petition is barred by res judicata.

________________________________

HON. WILLIAM B. HOFFMAN [Cite as State v. Holland,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : BRIAN E. HOLLAND : : : Defendant-Appellant : CASE NO. 2011-CAO-122

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Licking County, Ohio, is reversed, and the cause is

remanded to the court for further proceedings in accord with law and consistent with this

opinion. Costs to appellee.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. JOHN W. WISE