APPEAL from the Franklin County Court of Common Pleas C.P.C. No. 06CR-02-900
Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard, for appellee.
Aaron L. Carter, pro se.
(¶ 1} Defendant-appellant, Aaron L. Carter ("Carter"), appeals from the December 12, 2012 decision and entry of the Franklin County Court of Common Pleas denying his petition for post-conviction relief. Because the trial court properly denied Carter's untimely petition, we affirm.
I. FACTS AND PROCEDURAL HISTORY
(¶ 2} On February 2, 2006, a Franklin County Grand Jury indicted Carter on one count of aggravated murder with gun specifications, an unclassified felony, and one count of having a weapon while under disability, a felony of the third degree. Because the defense raised the issue of Carter's competency to stand trial, a forensic psychologist performed a psychological evaluation of Carter. On June 30, 2006, the trial court found Carter competent pursuant to the psychologist's 18-page written report, the parties' stipulations as to the psychologist's testimony, and the court's observations of Carter's demeanor during the proceedings.
(¶ 3} On February 27, 2007, Carter pled guilty to having a weapon while under disability and to the lesser included offense of murder with a gun specification. Pursuant to the parties' joint recommendation, the court imposed a prison term of 17 years to life. The court filed its judgment entry imposing sentence on February 27, 2007. Carter did not appeal the court's judgment.
(¶ 4} On April 18, 2009, Carter filed a motion entitled "Nunc Pro Tunc Petition to Set Aside Judgement [sic] of Conviction and Sentence Entered Against Aaron L. Carter." (R. 145.) In the motion, Carter asked the court to set aside his conviction and sentence, alleging a deprivation of his constitutional right to the effective assistance of counsel. Carter asserted his trial counsel rendered ineffective assistance by failing to have Carter evaluated by another psychologist, who would likely have found Carter incompetent to stand trial. The motion stated that it was filed pursuant to R.C. 2953.21. On April 24, 2009, plaintiff-appellee, the State of Ohio ("the State") filed an answer and motion to dismiss Carter's motion, construing the motion as a petition for post-conviction relief
(¶ 5} Carter filed a "Supplemental Brief on October 25, 2012, which reasserted his original motion's request for the court to set aside his conviction and sentence based on the ineffective assistance of counsel. The State construed Carter's supplemental brief as a motion to supplement his petition for post-conviction relief and filed a memorandum contra the motion.
(¶ 6} On December 12, 2012, the court issued a decision and entry denying and dismissing the April 17, 2009 motion as supplemented by the October 25, 2012 filing. The court construed the April 17, 2009 motion as a petition for post-conviction relief, denied the petition, and granted the State's motion to dismiss without an evidentiary hearing.
II. ASSIGNMENTS OF ERROR
(¶ 7} Carter appeals, assigning the following errors for review:
[I.] The Trial Court abused its discretion in not ruling on this Appellant's Post-Conviction Petition for nearly four years, yet finding him to be untimely. This violates Rule 35 and the Due Process of Law guaranteed by the 5th and 14th ...