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State v. Hall

Court of Appeals of Ohio, Fourth District

March 2, 2007

State of Ohio, Plaintiff-Appellee,
v.
Steve C. Hall, Defendant-Appellant.

Steve C. Hall, Chillicothe, Ohio, pro se appellant.

Larry E. Beal, Hocking County Prosecutor, and David A. Sams, Assistant Hocking County Prosecutor, Logan, Ohio, for appellee.

DECISION AND JUDGMENT ENTRY

Roger L. Kline, Judge

{¶ 1} Steve C. Hall appeals the judgment of the Hocking County Court of Common Pleas effectively granting his petition for postconviction relief and resentencing him to the same, non-minimum, consecutive terms that the court originally imposed. Hall maintains that the trial court's retroactive application of the relevant sentencing statutes, as modified by the Ohio Supreme Court's holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, deprived him of his constitutional right to due process of law. Because we find that Hall failed to timely file his petition for postconviction relief or satisfy the statutory requirements for filing a delayed petition, we find that the trial court lacked jurisdiction to consider it. Therefore, the judgment appealed is void. Accordingly, we vacate the August 30, 2006 judgment and dismiss Hall's appeal.

I.

{¶ 2} On April 1, 2005, a Hocking County Grand Jury indicted Hall for the following offenses against his two, young daughters: (1) two counts of rape in violation of R.C. 2907.02(A)(1)(b); (2) two counts of rape in violation of R.C. 2907.02(A)(2); (3) two counts of sexual battery in violation of R.C. 2907.03(A)(5); (4) two counts of gross sexual imposition in violation of R.C. 2907.05(A)(4); and (5) one count of intimidation of victim in a criminal case in violation of R.C. 2921.04(A).

{¶ 3} Hall initially entered not guilty pleas. However, Hall later reached a plea agreement with the prosecution. On July 29, 2005, Hall pled guilty to two counts of rape in violation of R.C. 2907.02(A)(1)(b); two counts of sexual battery in violation of R.C. 2907.03(A)(5); and one count of gross sexual imposition in violation of R.C. 2907.05(A)(4). In exchange, the state agreed to dismiss the remaining counts of the indictment. The parties jointly recommended an aggregate sentence of thirty years— nine years imprisonment for each rape conviction, four years imprisonment for each sexual battery conviction; and four years imprisonment for the gross sexual imposition conviction. The parties further stipulated that Hall was a sexual predator.

{¶ 4} The trial court issued its judgment entry adopting the parties' sentencing recommendation on August 4, 2005. On November 15, 2005, the trial court issued a nunc pro tunc entry, again imposing the jointly recommended sentence. In that entry, the court also found that Hall was a sexually oriented offender and adjudicated him a sexual predator as defined in R.C. 2950.01, et seq., in accordance with the parties' stipulation and the court's oral pronouncement at the sentencing hearing.

{¶ 5} Hall did not directly appeal either the original or the nunc pro tunc sentencing entry.[1] On July 21, 2006, Hall filed a petition for post conviction relief asking the trial court to vacate his sentence on the basis of the Ohio Supreme Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. In response, the trial court conducted a resentencing hearing. On August 30, 2006, the court issued a judgment entry imposing a sentence identical to Hall's original sentence.

{¶ 6} Hall appeals, raising the following assignment of error: "At the resentencing hearing, imposition of greater than the minimum terms for an individual who had not previously served time in prison, and making those terms consecutive, violated the Sixth Amendment and due process guarantees of the federal constitution and the equivalent guarantees under the Ohio Constitution."

II.

{¶ 7} On appeal, Hall asserts that the remedy the Ohio Supreme Court set forth in Foster to remedy constitutional defects in Ohio's sentencing statutes violates his constitutional right to due process in the same manner that comparable legislative action would violate the ex post facto clauses of the state and federal constitutions. Specifically, Hall asserts that the sentencing statutes in effect at the time of his original sentencing created a presumption in favor of minimum sentences for offenders who had not previously served a prison term, as well as a presumption in favor of concurrent sentences, unless the trial court made certain statutorily mandated findings. Hall maintains that when the Foster Court found the statutorily mandated judicial findings unconstitutional and excised those portions of the statute that required judicial fact finding to impose greater than minimum or consecutive prison terms, the trial court had no alternative but to impose minimum, concurrent sentences for his offenses. We do not reach the merits of Hall's assignment of error because we conclude that the trial court lacked the requisite jurisdiction to consider Hall's petition for postconviction relief.

{¶ 8} "[A] postconviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment." State v. Calhoun (1999), 86 Ohio St.3d 279, 281. (Citations omitted.) It is a special statutory proceeding governed by R.C. 2953.21. The statute authorizes a court of common pleas to consider a petition for postconviction relief filed within 180 days after the trial transcript is filed in the petitioner's direct appeal, or, if no appeal is taken, no later than 180 days after the expiration of the time for filing the appeal. R.C. 2953.21 (A)(2).

{¶ 9} Additionally, R.C. 2953.23(A)(1) permits a trial court to consider a delayed petition for postconviction relief under extremely limited ...


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