Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-14-585728-A
APPELLANT Robert M. Porter, pro se
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Gregory J. Ochocki Assistant County
Prosecutor The Justice Center,
BEFORE: Jones, J., Kilbane, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR., J.
Defendant-appellant Robert Porter, pro se, appeals from the
trial court's July 7, 2017 judgment denying his petition
to vacate or set aside judgment of conviction and sentence.
For the reasons that follow, we affirm.
In 2012, Porter was charged with several crimes relative to
the aggravated robbery and murder of Curtis Marks. In August
2014, on the day the case was set for trial, Porter pleaded
guilty to involuntary manslaughter with a three-year firearm
specification, that was an amended charge of Count 3,
aggravated murder. He also pleaded guilty to Count 4,
aggravated robbery. The remaining counts and specifications
were nolled. As part of the plea agreement, Porter and the
state agreed to recommend to the trial court a prison
sentencing range of 10 to 20 years. Further, Porter agreed as
part of the plea agreement to testify against his
codefendant, Julius Webster.
In January 2015, Webster's case proceeded to trial;
Porter refused to testify, however. In February 2015, Porter
filed a motion to withdraw his plea. The trial court held a
hearing, at which Porter testified that Webster had
threatened to retaliate if he testified against him, and that
he had a new concern he did not have at the time of his plea,
that his identity as a confidential informant would be known
if he testified. Porter maintained that these circumstances
caused him to fear for his own and his family's safety.
Moreover, Porter claimed innocence in the crimes. He told the
court that he would testify against Webster, but that he
wanted to change his plea. The trial court denied his
The trial court sentenced Porter to ten years incarceration
for involuntary manslaughter plus three years for the firearm
specification; seven years for aggravated robbery; and four
years incarceration for violating his community control on
another case. The sentences were run consecutively for a
total of 24 years. The trial court also ordered five years of
mandatory postrelease control.
Porter appealed, challenging the denial of his motion to
withdraw his plea and the imposition of the four-year
sentence on the other case. He also claimed that counsel was
ineffective for not advising him that he could be subject to
additional prison time on the other case. This court affirmed
the trial court's judgment denying Porter's motion to
withdraw his plea, but vacated the four-year prison term on
the other case and remanded for resentencing. State v.
Porter, 8th Dist. Cuyahoga No. 103185, 2016-Ohio-5832,
¶ 15, 23.
In June 2017, Porter filed a petition to vacate or set aside
his judgment of conviction and sentence that is a petition
for postconviction relief. He alleged in his petition that
his trial counsel was ineffective for failing to timely file
a motion to withdraw his plea. The trial court denied his
petition as untimely, and Porter now appeals, setting forth
the following two assignments of error for our review, that
we consider together:
I. The trial court erred, and due process was denied, when
the court failed to include findings of fact and conclusions
of law into the judgment denying appellant's
postconviction petition, and further, in rendering said
judgment before appellant's time to reply to the
state's response had expired.
II. The trial court abused its discretion in failing to grant
appellant's postconviction petition, or at the very
least, in failing to hold an evidentiary hearing on said
There are strict time limits for defendants seeking
postconviction relief under R.C. 2953.21. Under subsection
(A)(2) of the statute, a petition for postconviction 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 ...