[Cite as State v. Salim,

.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 13 CA 28 RYAN R. SALIM : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Guernsey County Court of Common Pleas, Case No. 07CR- 215

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: January 30, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL G. PADDEN RYAN R. SALIM GUERNSEY COUNTY PROSECUTOR G.C.I. 595-824 139 W. 8th Street 2500 S. Avon-Deldon Rd. Cambridge, OH 43725 Grafton, OH 44044 [Cite as State v. Salim,

.]

Gwin, P.J.

{¶1} Defendant-appellant Ryan Salim [“Salim”] appeals from the September 18,

2013 Judgment Entry of the Guernsey County Court of Common Pleas overruling his

Petition for Post Conviction Relief. Plaintiff-appellee is the State of Ohio.

Facts and Procedural History

{¶2} Salim was convicted after a jury trial of one count of aggravated robbery,

one count of kidnapping, one count of abduction, one count of failure to comply with the

order or signal of a police officer and one count of theft of drugs, all with gun

specifications. On September 8, 2009, this Court upheld Salim's convictions and

sentences. State v. Salim, 5th Dist. Guernsey No. 09-CA-1,

. [Salim I].

{¶3} On August 12, 2013, Salim filed a post-conviction petition pursuant to R.C.

2953.21. [“PCR”]. On September 18, 2013, the trial court filed Findings of

Fact/Conclusions of Law/Judgment Entry overruling Salim’s petition.

Assignments of Error

{¶4} It is from the trial court’s Judgment Entry filed September 18, 2013

denying his PCR petition that Salim timely appeals, raising the following two assignment

of error for our consideration:

{¶5} “I. WHETHER A PETITION FOR POST CONVICTION RELIEF

ASSERTING A CLAIM OF ERROR UNDER, ALLEYNE V. UNITED STATES 131 S. CT.

2151, 2013, U. S. LEXIS 4543 (2013), RELIES ON A "NEW RULE OF

CONSTITUTIONAL LAW, MADE RETROACTIVE TO CASES ON COLLATERAL

REVIEW BY THE SUPREME COURT," WITHIN THE MEANING OF O.R.C. §2953.21,

O.R.C. §2953.23, Guernsey County, Case No. 13 CA 28 3

{¶6} “II. WHETHER THE NEW RULE OF CONSTITUTIONAL LAW

ANNOUNCED BY UNITED STATES SUPREME COURT IN ALLEYNE V. UNITED

STATES 131 S. CT. 2151, 2013, U. S. LEXIS 4543 (2013), WAS MADE

RETROACTIVELY APPLICABLE TO PETITIONERS SEEKING COLLATERAL

REVIEW OF THEIR CONVICTIONS.”

I, II

{¶7} In his first assignment of error, Salim maintains that his petition for post

conviction relief was timely because subsequent to the period prescribed in division

(A)(2) of section 2953.21 of the Revised Code the United States Supreme Court

recognized a new federal or state right; in his second assignment of error Salim argues

that the new federal or state right recognized by the United States Supreme Court

applies retroactively to persons in the Salim’s situation, and his petition asserted a claim

based on that right.

{¶8} Because we find the issues raised in Salim’s first and second assignments

of error are closely related, for ease of discussion, we shall address the assignments of

error together.

{¶9} Salim’s PCR petition is governed by R.C. 2953.21(A), which states in part

as follows:

Any person who has been convicted of a criminal offense or

adjudicated a delinquent child 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 Guernsey County, Case No. 13 CA 28 4

is a felony and who is an offender for whom DNA testing that was

performed under sections 2953.71 to 2953.81 of the Revised Code or

under former section 2953.82 of the Revised Code and analyzed in the

context of and upon consideration of all available admissible evidence

related to the person’s case as described in division (D) of section

2953.74 of the Revised Code provided results that establish, by clear and

convincing evidence, actual innocence of that felony offense or, if the

person was sentenced to death, establish, by clear and convincing

evidence, actual innocence of the aggravating circumstance or

circumstances the person was found guilty of committing and that is or are

the basis of that sentence of death, 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. The petitioner may file a supporting affidavit and other

documentary evidence in support of the claim for relief.

R.C. 2953.21(A)(1)(a). 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.” Guernsey County, Case No. 13 CA 28 5

{¶10} The record indicates Salim did file a direct appeal in this matter. Salim I.

The transcript was filed in that case on February 17, 2009. Therefore, under R.C.

2953.21(A)(2), Salim was required to file his petition “ * * * no later than one hundred

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

Salim’s petition was filed August 12, 2013, which is well beyond the time provided for in

the statute. Because Salim's petition was untimely filed, the trial court was required to

entertain his petition only if Salim could meet the requirements of R.C. 2953.23(A). This

statute provides, in pertinent part,

* * * [A] court may not entertain a petition filed after the expiration of

the period prescribed in division (A) of that section [R.C. 2953.21] or a

second petition or successive petitions for similar relief on behalf of a

petitioner unless division (A)(1) or (2) of this section applies:

(1) Both of the following apply:

(a) Either 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, or, 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.

(b) The petitioner shows by clear and convincing evidence that, but

for constitutional error at trial, no reasonable fact finder would have found

the petitioner guilty of the offense of which the petitioner was convicted or, Guernsey County, Case No. 13 CA 28 6

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.

(2) The petitioner was convicted of a felony, the petitioner is an

offender for whom DNA testing was performed under sections 2953.71 to

2953.81 of the Revised Code or under former section 2953.82 of the

Revised Code and analyzed in the context of and upon consideration of all

available admissible evidence related to the inmate’s case as described in

division (D) of section 2953.74 of the Revised Code, and the results of the

DNA testing establish, by clear and convincing evidence, actual innocence

of that felony offense or, if the person was sentenced to death, establish,

by clear and convincing evidence, actual innocence of the aggravating

circumstance or circumstances the person was found guilty of committing

and that is or are the basis of that sentence of death.

{¶11} In the case at bar, Salim contends that the Supreme Court’s recent

decision in Alleyne v. United States, ––– U.S. ––––,

,

(2013), entitles him to file an untimely petition for post conviction relief. Alleyne

overruled prior Supreme Court case law and held that under the Sixth Amendment:

Any fact that, by law, increases the penalty for a crime is an

“element” that must be submitted to the jury and found beyond a

reasonable doubt. Mandatory minimum sentences increase the penalty for

a crime. It follows, then, that any fact that increases the mandatory

minimum is an “element” that must be submitted to the jury. Guernsey County, Case No. 13 CA 28 7

,

(citation omitted). Salim argues that the jury, not the

judge, is required to make the factual findings necessary to impose consecutive

sentences.

{¶12} Recently the question of whether Alleyne creates a new rule of law that

can be retroactive to cases on collateral review has been discussed by the United

States Court of Appeals, Tenth Circuit,

Although Mr. Payne asserts that Alleyne is not a new rule of law

and instead re-establishes prior Sixth Amendment law, we agree with the

Seventh Circuit that Alleyne actually does set forth “a new rule of

constitutional law,” Simpson v. United States,

(7th

Cir. 2013). But this new rule of constitutional law has not been “made

retroactive to cases on collateral review by the Supreme Court.”

(h)(2). The Supreme Court has concluded that “‘made’ means ‘held’

and thus, the requirement is satisfied only if th[e] Court has held that the

new rule is retroactively applicable to cases on collateral review.” Tyler v.

Cain,

,

,

(2001). The

Court has not held that Alleyne applies retroactively to cases on collateral

review. Further, “[t]he Court resolved Alleyne on direct rather than

collateral review.” Simpson,

. We agree with the Seventh

Circuit that:

“Alleyne is an extension of Apprendi v. New Jersey,

,

,

(2000). The Justices have decided that

other rules based on Apprendi do not apply retroactively on collateral Guernsey County, Case No. 13 CA 28 8

review. See Schriro v. Summerlin,

,

,

(2004). This implies that the Court will not declare Alleyne to

be retroactive....

Unless the Justices themselves decide that Alleyne applies

retroactively on collateral review, we cannot authorize a successive

collateral attack based on § 2255(h)(2).” Simpson,

.1 See

generally Browning v. United States,

(10th Cir. 2001)

(declining to authorize second or successive § 2255 motion because

Supreme Court has not made Apprendi retroactive).

In re Payne,

(10th Cir. 2013).Thus because Alleyne does not

apply retroactively to cases on collateral review, the trial court in the case at bar

correctly decided that it did not have jurisdiction to consider Salim’s untimely PCR

petition.

{¶13} In the alternative, Salim’s reliance on Alleyne is misplaced. Salim’s claim

is without merit because the court made no impermissible findings of fact and

considered factors permitted by law in sentencing. First, Salim’s argument rests on the

erroneous assumption that the trial court “enhanced” his presumptive minimum

sentence. Salim incorrectly assumes that Ohio still has a presumptive minimum

sentence and that any upward departure from that presumptive minimum is an

“enhancement.”

{¶14} Regarding consecutive sentences, in State v. Foster,

,

,

, the Ohio Supreme Court held that because R.C.

2929.14(E)(4) and 2929.41(A) require judicial fact-finding before a court can impose Guernsey County, Case No. 13 CA 28 9

consecutive sentences, they are unconstitutional and ordered them to be severed.

paragraph three of the syllabus. In striking down these and other parts of

Ohio’s sentencing scheme, the Foster court held that “[t]rial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to make

findings or give their reasons for imposing maximum, consecutive, or more than the

minimum sentences.”

paragraph seven of the syllabus.

{¶15} The United States Supreme Court in Oregon v. Ice,

,

,

(2009), subsequently held that the right to a jury trial under

the Sixth Amendment to the United States Constitution does not preclude states from

requiring trial court judges to engage in judicial fact-finding prior to imposing

consecutive sentences.

at 171–172.

{¶16} Thereafter, in State v. Hodge,

, 2010–Ohio–6320,

, the Ohio Supreme Court addressed “whether, as a consequence of the

decision in Ice, Ohio trial courts imposing consecutive sentences must first make the

findings specified in R.C. 2929.14(E)(4) in order to overcome the presumption for

concurrent sentences in R.C. 2929.41(A).”

. In answering the

question in the negative, the court held: (1) the Sixth Amendment right to a jury trial

does not preclude states from requiring trial court judges to engage in judicial fact-

finding prior to imposing consecutive sentences; (2) Ice does not revive Ohio’s former

consecutive-sentencing statutes held unconstitutional in Foster; and (3) trial court

judges are not obligated to engage in judicial fact-finding prior to imposing consecutive

sentences unless the General Assembly enacts new legislation requiring that such

findings be made.

paragraphs one, two, and three of the syllabus. Trial judges have Guernsey County, Case No. 13 CA 28 10

“‘the discretion and inherent authority to determine whether a prison sentence within the

statutory range shall run consecutively or concurrently.’” Id. at ¶12, quoting State v.

Bates,

, 2008–Ohio–1983,

, ¶¶18–19.

{¶17} The Hodge court further explained that Foster merely took away a trial

judge’s duty to make findings before imposing consecutive sentences and that Ice did

not directly overrule Foster.

. The court indicated, “Although

the Ice decision holds that it is constitutionally permissible for a judge to engage in

judicial fact-finding to impose consecutive sentences, there is no constitutional

requirement that a judge make findings of fact before imposing consecutive sentences.”

Id. at ¶ 26.

{¶18} The General Assembly did reenact the provisions after Salim’s

sentencing. This court has found the provisions are not retroactive. See, e.g., State v.

Hobby, Fifth District No.

, 2012–Ohio–2420, citing State v. Kalish,

, 2008–Ohio–4912,

and

{¶19} Thus, judges have discretion and inherent authority to impose either

concurrent or consecutive sentences without the requirement of specific fact-finding. In

Alleyne, the relevant fact was whether the defendant brandished a firearm, which

increased the minimum penalty for using or carrying a firearm in relation to a crime of

violence. Id. at 2155. However, the majority in Alleyne was careful to declare that,

In holding that facts that increase mandatory minimum sentences

must be submitted to the jury, we take care to note what our holding does

not entail. Our ruling today does not mean that any fact that influences

judicial discretion must be found by a jury. We have long recognized that Guernsey County, Case No. 13 CA 28 11

broad sentencing discretion, informed by judicial fact-finding, does not

violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S. –

–––, ––––,

,

(2010) (“[W]ithin

established limits[,] ... the exercise of [sentencing] discretion does not

contravene the Sixth Amendment even if it is informed by judge-found

facts” (emphasis deleted and internal quotation marks omitted)); Apprendi,

,

(“[N]othing in this history suggests that it

is impermissible for judges to exercise discretion—taking into

consideration various factors relating both to offense and offender—in

imposing a judgment within the range prescribed by statute”).

Alleyne,

,

.

{¶20} The court sentencing Salim had full discretion to select any sentence it

deemed appropriate within the relevant sentencing ranges and was entitled to engage

in any fact-finding it thought necessary in reaching the decision to impose concurrent or

consecutive sentences. This did not violate the holding in Alleyne and did not violate

Salim’s due process rights.

{¶21} Salim’s first and second assignments of error are overruled. Guernsey County, Case No. 13 CA 28 12

{¶22} The judgment of the Court of Common Pleas of Guernsey County, Ohio is

hereby affirmed.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur