section 2953.21 post conviction relief in Ohio

2023State v. Reynolds, 79 Ohio St.3d 158, 160 , 679 N.E.2d 1131 , 1997-Ohio-304 . {¶29} R.C. §2953.21 provides a petition for post-conviction relief must be filed no later than 180 days after the date on which the trial transcript is filed in the Court of Appeals in the direct appeal, or if no appeal is taken, no later than 180 days after the expiration of the time for filing the appeal. {¶30} Here, Appellant pursued his direct appeal in November, 2017.

2023State v. Reynolds, 79 Ohio St.3d 158, 160 , 679 N.E.2d 1131 , 1997-Ohio-304 . {¶30} R.C. § 2953.21 provides a petition for post-conviction relief must be filed no later than 365 days after the date on which the trial transcript is filed in the Court of Appeals in the direct appeal, or if no appeal is taken, no later than 365 days after the expiration of the time for filing the appeal. {¶31} Here, Appellant pursued his direct appeal in October, 2015.

2019State v. Gondor, 112 Ohio St.3d 377 , 2006-Ohio-6679 , ¶ 58.

2013State v. Gondor, 112 Ohio St.3d 377 , 2006-Ohio-6679 , ¶ 58. 3 An abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

2014The defendant is ordered to serve as part of this sentence any term of post-release control imposed by the Parole Board and any prison term for violations of that post-release control.” {¶12} In 2006, Appellant filed a petition for post-conviction relief pursuant to R.C. §2953.21, arguing that the trial court engaged in unconstitutional judicial fact-finding in violation of Blakely v. Washington, 542 U.S. 296 , 124 S,Ct. 2531, 159 L.Ed.2d 403 (2004).

2014The defendant is ordered to serve as part of this sentence any term of post-release control imposed by the Parole Board and any prison term for violations of that post-release control.” {¶12} In 2006, Appellant filed a petition for post-conviction relief pursuant to R.C. §2953.21, arguing that the trial court engaged in unconstitutional judicial fact-finding in violation of Blakely v. Washington, 542 U.S. 296 , 124 S,Ct. 2531, 159 L.Ed.2d 403 (2004).

2010Yates v. Court of Appeals for Montgomery Cty. (1987), 32 Ohio St.3d 30 , 512 N.E.2d 343 , syllabus, we held that a judgment of acquittal entered by the trial court pursuant to Crim.R. 29(C) is a final verdict within the meaning of R.C. 2945.67 and is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute.

2010Yates v. Court of Appeals for Montgomery Cty. (1987), 32 Ohio St.3d 30 , 512 N.E.2d 343 , syllabus, we held that a judgment of acquittal entered by the trial court pursuant to Crim.R. 29(C) is a final verdict within the meaning of R.C. 2945.67 and is not appealable by the state as a matter of right or by leave to appeal pursuant to that statute.

2010R.C. 2945.67(A) provides: {¶ 14} “A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case.” (Emphasis added.) 1 {¶

2010R.C. 2945.67(A) provides: {¶ 14} “A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case.” (Emphasis added.) 1 {¶

2007R. 60(B) AS A PETITION FOR POST CONVICTION RELIEF PURSUANT TO O.R.C., SECTION 2952.21 [SIC] AND DISMISSING THE MOTION AS UNTIMELY." {¶ 9} Appellant argues that the trial court erred when it treated his Motion for Relief from Judgment as post-conviction relief pursuant to R.C. § 2953.21 and that he is entitled to have his prison sentence vacated and his case remanded to the trial court for a new sentencing hearing pursuant to State v. Foster , 109 Ohio St.3d 1 , 845 N.E.2d 470 , 2006-Ohio-856 . {¶ 10} This Court will first address the conversion of the 60(B) Motion to post-conviction relief pur

2007R. 60(B) AS A PETITION FOR POST CONVICTION RELIEF PURSUANT TO O.R.C., SECTION 2952.21 [SIC] AND DISMISSING THE MOTION AS UNTIMELY." {¶ 9} Appellant argues that the trial court erred when it treated his Motion for Relief from Judgment as post-conviction relief pursuant to R.C. § 2953.21 and that he is entitled to have his prison sentence vacated and his case remanded to the trial court for a new sentencing hearing pursuant to State v. Foster , 109 Ohio St.3d 1 , 845 N.E.2d 470 , 2006-Ohio-856 . {¶ 10} This Court will first address the conversion of the 60(B) Motion to post-conviction relief pur

1993The state argues that, as no final verdict has issued, it is within our discretion to grant the appeal, citing State v. Fisher (1988), 35 Ohio St.3d 22 , 517 N.E.2d 911 .

1993The state argues that, as no final verdict has issued, it is within our discretion to grant the appeal, citing State v. Fisher (1988), 35 Ohio St.3d 22 , 517 N.E.2d 911 .

1990Because of the disparity between the rights of the accussed and the accuser, the legislature adopted 2945.67(A), State v. Davidson (1985), 17 Ohio St. 3d 132 , 477 N.E.2d 1141 , which states: "A prosecuting attorney * * * may appeal as a matter * * * [ofl right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to Sections 2953.21 to 2953.24 of the Revised Code, and may a

1990Because of the disparity between the rights of the accussed and the accuser, the legislature adopted 2945.67(A), State v. Davidson (1985), 17 Ohio St. 3d 132 , 477 N.E.2d 1141 , which states: "A prosecuting attorney * * * may appeal as a matter * * * [ofl right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to Sections 2953.21 to 2953.24 of the Revised Code, and may a

2019In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript.” R.C. 2953.21(D). {¶13} “Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal

2019In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript.” R.C. 2953.21(D). {¶13} “Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal

2019In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript.” R.C. 2953.21(D). {¶13} “Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal

2019In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court’s journal entries, the journalized records of the clerk of the court, and the court reporter’s transcript.” R.C. 2953.21(D). {¶13} “Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal

2017State v. Powell (1993), 90 Ohio App.3d 260, 264 , 629 N.E.2d 13, 16 .

2017State v. Powell (1993), 90 Ohio App.3d 260, 264 , 629 N.E.2d 13, 16 .

2011Such section states, in relevant part, as follows: “ A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter of right any decision of a trial court in a criminal case,… which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, …” The statutory language of R.C. 2945.67(A) “allows the state a direct appeal whenever the trial cou

2011Such section states, in relevant part, as follows: “ A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter of right any decision of a trial court in a criminal case,… which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, …” The statutory language of R.C. 2945.67(A) “allows the state a direct appeal whenever the trial cou

2009State v. Garretson (2000), 140 Ohio App.3d 554 .

2008Uncodified S.B. 4, Section 3, states that "A person who seeks post conviction relief pursuant to Sections 2953.21 through 2953.23 of the Revised Code with respect to a case in which sentence was imposed prior to the *Page 5 effective date of this act or to an adjudication as a delinquent child and order of disposition issued prior to the effective date of this act shall file a petition within the time required in division (A)(2) of Section 2953.21 of the Revised Code, as amended by this act, or within one year from the effective date of this act, whichever is later." See 1995 Ohio Laws File 24

2008NEW JERSEY (2000), 530 U.S. 466 ; BLAKELY v. WASHINGTON (2004), 542 U.S. 296 ; and UNITED STATES v. BOOKER (2005), 543 U.S. 220 , AS INTERPRETED BY THE OHIO SUPREME COURT IN STATE v. FOSTER , 109 OHIO ST.3d 1 2006-OHIO-856 ." {¶ 6} Houston argues the trial court erred when it converted his Civ.R. 60(B) motion to correct a void sentencing order to a R.C. § 2953.21 petition for post-conviction relief.

2008NEW JERSEY (2000), 530 U.S. 466 ; BLAKELY v. WASHINGTON (2004), 542 U.S. 296 ; and UNITED STATES v. BOOKER (2005), 543 U.S. 220 , AS INTERPRETED BY THE OHIO SUPREME COURT IN STATE v. FOSTER , 109 OHIO ST.3d 1 2006-OHIO-856 ." {¶ 6} Houston argues the trial court erred when it converted his Civ.R. 60(B) motion to correct a void sentencing order to a R.C. § 2953.21 petition for post-conviction relief.

2007Bond v. Velotta Co. , 91 Ohio St.3d 418 , 419 , 2001-Ohio-91 . *Page 6 {¶ 12} R.C. 2945.67 (A) governs when the State may appeal a decision and provides that the State "may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any

2007Bond v. Velotta Co. , 91 Ohio St.3d 418 , 419 , 2001-Ohio-91 . *Page 6 {¶ 12} R.C. 2945.67 (A) governs when the State may appeal a decision and provides that the State "may appeal as a matter of right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any

2007We agree. {¶ 2} R.C. 2945.67 (A) governs appeals by the prosecution, and states, in pertinent part: *Page 2 A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which th

2007State v. Slatter (1981), 66 Ohio St.2d 452 , 456-457 , 423 N.E.2d 100 ; State v. Waller (1976), 47 Ohio St.2d 52 , 55-56 , 351 N.E.2d 195 ; State v. Kole (Sept. 29, 2000), Ashtabula App. No. 99-A-0015.

2007State v. Slatter (1981), 66 Ohio St.2d 452 , 456-457 , 423 N.E.2d 100 ; State v. Waller (1976), 47 Ohio St.2d 52 , 55-56 , 351 N.E.2d 195 ; State v. Kole (Sept. 29, 2000), Ashtabula App. No. 99-A-0015.

2007State v. Slatter (1981), 66 Ohio St.2d 452 , 456-457 , 423 N.E.2d 100 ; State v. Waller (1976), 47 Ohio St.2d 52 , 55-56 , 351 N.E.2d 195 ; State v. Kole (Sept. 29, 2000), Ashtabula App. No. 99-A-0015.

2007State v. Slatter (1981), 66 Ohio St.2d 452 , 456-457 , 423 N.E.2d 100 ; State v. Waller (1976), 47 Ohio St.2d 52 , 55-56 , 351 N.E.2d 195 ; State v. Kole (Sept. 29, 2000), Ashtabula App. No. 99-A-0015.

2003State v. Cooperrider (1983), 4 Ohio St.3d 226 , 228-229 . {¶ 5} In a second possible issue for review, appellate counsel suggests that Young's guilty pleas were not knowingly and freely made or were rendered void by the State's violation of the plea agreement.

2002While neither party raised the issue of whether the trial court had jurisdiction to consider appellant's motion for sentence modification, we believe that this issue is determinative to the outcome of this appeal. {¶ 12} Pursuant to R.C. 2949.05 , a trial court has the authority to carry into execution the sentence it had imposed upon a defendant: {¶ 13} "If no appeal is filed, if leave to file an appeal or certification of a case is denied, if the judgment of the trial court is affirmed on appeal, or if post-conviction relief under section 2953.21 of the Revised Code is denied, the trial cour

2000State v. Addison (1987), 40 Ohio App.3d 7 , 530 N.E.2d 1335 ; In re Zilba (1996), 110 Ohio App.3d 258 , 673 N.E.2d 997 ; Brook Park v. Necak (1986), 30 Ohio App.3d 118 , 30 *559 OBR 218, 506 N.E.2d 936 ; State v. Ballard (1991), 77 Ohio App.3d 595 , 602 N.E.2d 1234 .

2000State v. Addison (1987), 40 Ohio App.3d 7 , 530 N.E.2d 1335 ; In re Zilba (1996), 110 Ohio App.3d 258 , 673 N.E.2d 997 ; Brook Park v. Necak (1986), 30 Ohio App.3d 118 , 30 *559 OBR 218, 506 N.E.2d 936 ; State v. Ballard (1991), 77 Ohio App.3d 595 , 602 N.E.2d 1234 .

2000State v. Addison (1987), 40 Ohio App.3d 7 , 530 N.E.2d 1335 ; In re Zilba (1996), 110 Ohio App.3d 258 , 673 N.E.2d 997 ; Brook Park v. Necak (1986), 30 Ohio App.3d 118 , 30 *559 OBR 218, 506 N.E.2d 936 ; State v. Ballard (1991), 77 Ohio App.3d 595 , 602 N.E.2d 1234 .

2000State v. Addison (1987), 40 Ohio App.3d 7 , 530 N.E.2d 1335 ; In re Zilba (1996), 110 Ohio App.3d 258 , 673 N.E.2d 997 ; Brook Park v. Necak (1986), 30 Ohio App.3d 118 , 30 *559 OBR 218, 506 N.E.2d 936 ; State v. Ballard (1991), 77 Ohio App.3d 595 , 602 N.E.2d 1234 .

2000State v. Addison (1987), 40 Ohio App.3d 7 , 530 N.E.2d 1335 ; In re Zilba (1996), 110 Ohio App.3d 258 , 673 N.E.2d 997 ; Brook Park v. Necak (1986), 30 Ohio App.3d 118 , 30 *559 OBR 218, 506 N.E.2d 936 ; State v. Ballard (1991), 77 Ohio App.3d 595 , 602 N.E.2d 1234 .

2000State v. Addison (1987), 40 Ohio App.3d 7 , 530 N.E.2d 1335 ; In re Zilba (1996), 110 Ohio App.3d 258 , 673 N.E.2d 997 ; Brook Park v. Necak (1986), 30 Ohio App.3d 118 , 30 *559 OBR 218, 506 N.E.2d 936 ; State v. Ballard (1991), 77 Ohio App.3d 595 , 602 N.E.2d 1234 .