[Cite as State v. Aleshire,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. Patricia A. Delaney, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 2011-CA-99 LONNY J. ALESHIRE, JR. : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County Court of Common Pleas, Case No. 05-CR- 60

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 24, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT LONNY J. ALESHIRE, JR. Licking County Prosectur No. 508762 20 S. Second Street Chillicothe Correctional Inst. Newark, OH 43055 Box 5500 Chillicothe, OH 45601 [Cite as State v. Aleshire,

.]

Gwin, J.

{¶ 1} A complete history of appellant’s underlying case and subsequent journey

through the appellate process is set forth in State v. Aleshire, 5th Dist. No. 2011-CA-73,

,

.

{¶ 2} The instant appeal stems from appellant having filed a Petition for Post-

Conviction Relief on July 6, 2011, which the trial court denied on August 30, 2011. The

trial court found that appellant’s petition was not timely filed and that the issues raised

by appellant in his petition for post conviction relief were barred by the doctrine of res

judicata.

{¶ 3} Appellant assigns as error,

{¶ 4} “THE TRIAL COURT ERRED WHEN IT FOUND THE APPELLANT'S

PETITION FOR POST-CONVICTION RELIEF WAS BARRED BY RES JUDICATA AND

UNTIMELY FILED.”

I.

{¶ 5} Post conviction efforts to vacate a criminal conviction or sentence on

constitutional grounds are governed by R.C. 2953.21, which provides:

{¶ 6} “Any person who has been convicted of a criminal offense * * * and who

claims that there was such a denial or infringement of the person's rights as to render

the judgment void or voidable under the Ohio Constitution or the Constitution of the

United States, and any person who has been convicted of a criminal offense that is a

felony, who is an inmate, * * * may file a petition in the court that imposed sentence,

stating the grounds for relief relied upon, and asking the court to vacate or set aside the

judgment or sentence or to grant other appropriate relief.” Licking County, Case No. 2011-CA-99 3

{¶ 7} Pursuant to R.C. 2953.21(A) (2), a petition for post-conviction relief “shall

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

is filed in the court of appeals in the direct appeal of the judgment of conviction or

adjudication or, if the direct appeal involves a sentence of death, the date on which the

trial transcript is filed in the supreme court. If no appeal is taken, the petition shall be

filed no later than one hundred eighty days after the expiration of the time for filing the

appeal.”

{¶ 8} The record indicates appellant did file an appeal in this matter with a

transcript. The transcript was filed in this Court in 2007. See, State v. Aleshire, 5th Dist.

No. 2007–CA–1, 2007–Ohio–4446,

. Therefore, under R.C.

2953.21(A) (2), appellant was required to file his petition " * * * one hundred eighty days

after the date on which the trial transcript is filed in the court of appeals...”

{¶ 9} However, appellant did not file his petition for post-conviction relief until

July 6, 2011, which is well beyond the period provided for in the statute. Because

appellant's petition was untimely filed, the trial court was required to entertain

appellant's petition only if he could meet the requirements of R.C. 2953.23(A). This

statute provides, in pertinent part:

{¶ 10} * * * [A] court may not entertain a petition filed after the expiration of the

period prescribed in division (A) of that section or a second petition or successive

petitions for similar relief on behalf of a petitioner unless both of the following apply:

{¶ 11} "(1) Either of the following applies: Licking County, Case No. 2011-CA-99 4

{¶ 12} "(a) The petitioner shows that the petitioner was unavoidably prevented

from discovery of the facts upon which the petitioner must rely to present the claim for

relief.

{¶ 13} "(b) Subsequent to the period prescribed in division (A)(2) of section

2953.21 of the Revised Code or to the filing of an earlier petition, 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.

{¶ 14} "(2) The petitioner shows by clear and convincing evidence that, but for

constitutional error at trial, no reasonable factfinder would have found the petitioner

guilty of the offense of which the petitioner was convicted or, if the claim challenges a

sentence of death that, but for constitutional error at the sentencing hearing, no

reasonable fact finder would have found the petitioner eligible for the death sentence.”

{¶ 15} Appellant's argument does not rely on the language in R.C.

2953.23(A)(1)(a) that he “was unavoidably prevented from discovery of the facts upon

which the petitioner must rely to present the claim for relief,” rather appellant argues that

because his case had been remanded for resentencing in December 2010, the time

frame for filing a petition for post-conviction relief, essentially, starts to run again. We

disagree.

{¶ 16} Pursuant to State v. Fischer,

, 2010– Ohio–6238, the

scope of the re-sentencing hearing was limited to the proper imposition of post-release

control. Concerning R.C. 2953.23(A)(1)(b), we note that Fischer was not a decision by

the United States Supreme Court, and therefore did not constitute recognition by the

United States Supreme Court of a new federal or state right that applies retroactively to Licking County, Case No. 2011-CA-99 5

persons in appellant's situation. See, State v. Berry, 10th Dist. No. 08AP-762, 2009-

Ohio-1557 at 19; State v. Smith, 10th Dist. No. 09AP-46,

at ¶10.

{¶ 17} In this case, appellant’s petition was primarily directed at errors in the

original proceedings, not the resentencing. Therefore, those errors should have been

raised in a timely petition following his original conviction and sentence. State v. Seals,

8th Dist. No. 93198,

,

, ¶ 10.

{¶ 18} Further, Ohio courts are unanimous in concluding that the time limit for

filing a petition for post-conviction relief runs from the original appeal of the conviction.

State v. Davis, 4th Dist. No. 10CA25,

,

, ¶8, State v.

Piesciuk, 12th Dist. No. CA2009-10-251,

,

, ¶ 12; State

v. Seals, supra ¶ 7; State v. Haschenburger, 7th Dist. No. 08-MA-223,

,

, ¶ 27. “To hold otherwise would extend [the time to file] ‘well beyond

the time limits set forth in R.C. 2953.21(A)(2) to an undetermined time in the future, all

contrary to the intent of the legislature.’” Piesciuk, quoting State v. Laws, 10th Dist. No.

04AP283, 2004–Ohio–6446,

, ¶ 6. See also, State v. Gross,

Muskingum App. No. CT2006-0006,

,

, ¶ 34.

{¶ 19} Therefore, the resentencing hearing and the subsequent resentencing

entry in appellant’s case did not extend the time to file a timely petition for post-

conviction relief.

{¶ 20} Because appellant's petition for post-conviction relief was untimely filed

under R.C. 2953. 21(A) (2) and fails to meet the narrow exceptions allowing for untimely

filing provided by R.C. 2953.23(A), dismissal of the petition was appropriate. A court has

no jurisdiction to hear an untimely petition for post-conviction relief unless the petitioner Licking County, Case No. 2011-CA-99 6

meets the requirements in R.C. 2953.23(A). State v. Demastry, 5th Dist. No. 05CA14,

,

, ¶ 15. (Citations omitted); State v. Mong, 5th Dist.

No. 04CA50,

,

, ¶ 11; State v. Reynolds, 10th Dist. No.

08AP-1052,

,

, ¶ 10.

{¶ 21} Finally, a trial court may also dismiss a petition seeking post-conviction

relief if it determines that the doctrine of res judicata applies. State v. Szefcyk,

,

,

. Res judicata bars a defendant who was

represented by counsel from raising an issue in a petition seeking post-conviction relief

if the defendant raised or could have raised the issue at trial or on direct appeal.

at

syllabus.

{¶ 22} Appellant, in his previous filings, has already challenged the effectiveness

of trial counsel, the denial of the trial court to permit him to withdraw his plea, the re-

sentencing on the three counts of sexual imposition, his right to address the court, and

the trial court’s alleged failure to inform him of his right to appeal. See, State v. Aleshire,

5th Dist. No. 2011-CA-73,

,

. Appellant could have, but did

not, raise in his direct appeal or subsequent appeals any claimed denial of his right to

counsel during the initial appearance in 2005. Thus, the trial court’s decision that res

judicata also bars all of appellant’s claims is correct.

{¶ 23} In summary, the trial court was correct in dismissing appellant’s petition for

post-conviction relief on the ground that, 1). The time limit for filing a petition for post-

conviction relief runs from the original appeal of the conviction; and 2). Res judicata acts

to bar further litigation regarding the issues raised in appellant’s petition for post Licking County, Case No. 2011-CA-99 7

conviction relief. State v. Reynolds,

,

(1997);

Smith,

at ¶13.

{¶ 24} Appellant’s sole assignment of error is overruled in its entirety.

{¶ 25} Accordingly, the judgment of the Licking County Court of Common Pleas

is affirmed.

By Gwin, J., and

Delaney, P.J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JULIE A. EDWARDS WSG:clw 0123 [Cite as State v. Aleshire,

.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : LONNY J. ALESHIRE, JR. : : : Defendant-Appellant : CASE NO. 2011-CA-99

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

judgment of the Licking County Court of Common Pleas is affirmed. Costs to appellant.

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. JULIE A. EDWARDS