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State v. Porter

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 29, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ROBERT M. PORTER DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-585728-A

          FOR 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

          LARRY A. JONES, SR., J.

         {¶1} 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.

         {¶2} 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.

         {¶3} 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 request.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 petition.

         {¶7} 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 ...


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