[Cite as State v. Carter, 2013-Ohio-4637.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-13-26
v.
WILLIAM T. CARTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009-0186
Judgment Affirmed
Date of Decision: October 21, 2013
APPEARANCES:
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
Case No. 1-13-26
PRESTON, P.J.
{¶1} Defendant-appellant, William T. Carter, appeals the Allen County
Court of Common Pleas’ judgment entry denying his second post-conviction
petition. We affirm.
{¶2} On October 26, 2009, Carter pled guilty to Count One of kidnapping
in violation of R.C. 2905.01(A)(2), a first degree felony; and, Count Two of
aggravated robbery in violation of R.C. 2911.01(A)(3), a first degree felony,
pursuant to a written plea agreement. (Oct. 26, 2009 Tr. at 1-4, 12); (Doc. No.
25). Both counts carried repeat violent offender (RVO) specifications pursuant to
R.C. 2929.01(D)(D) and 2941.149. (Id.); (Id.). The State agreed to request a pre-
sentence investigation report as part of the plea agreement but did not agree to
remain silent at sentencing. (Doc. No. 25).
{¶3} On December 16, 2009, the trial court sentenced Carter to ten years on
each count, but the trial court ordered that the terms run concurrent to each other
due to merger. (Dec. 18, 2009 JE, Doc. No. 32). The trial court also sentenced
Carter to ten years on each of the RVO specifications but ordered that those terms
run concurrent to each other due to merger. (Id.). The trial court further ordered
that the ten-year term for the RVO specifications run first and consecutive to the
ten-year term imposed for the underlying offenses, for an aggregate 20-year
sentence. (Id.).
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{¶4} On January 13, 2010, Carter filed a notice of appeal. (Doc. No. 35).
On December 27, 2010, this Court reversed and remanded for resentencing with
instructions that the trial court allow the State to elect which offense it would
pursue for sentencing purposes.
{¶5} On April 6, 2011, Carter filed a motion to withdraw his guilty plea.
(Doc. No. 52).
{¶6} On June 16, 2011, the trial court overruled Carter’s motion to
withdraw and resentenced him to ten years on Count Two of aggravated robbery
after the State elected to proceed on the same. (Doc. Nos. 67, 69). The trial court
also imposed ten years for the RVO specification affiliated with Count Two, and
further ordered that Carter serve that 10-year term first and consecutive to the ten
years imposed for the underlying offense, for an aggregate 20-year sentence.
(Doc. No. 69).
{¶7} On July 13, 2011, Carter filed a notice of appeal from the trial court’s
decision denying his motion to withdraw his guilty plea, which was assigned
appellate case no. 1-11-36. (Doc. No. 72). On November 28, 2011, this Court
affirmed the trial court’s decision. (Doc. No. 88).
{¶8} On November 10, 2011, Carter, pro se, filed a notice of appeal from
the trial court’s June 21, 2011 judgment entry of resentencing, which was assigned
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appellate case no. 1-11-65. (Doc. No. 82). This Court denied Carter leave to file
this delayed appeal on December 27, 2011. (Doc. No. 96).
{¶9} On January 13, 2012, Carter filed a post-conviction petition pursuant
to R.C. 2953.21. (Doc. No. 93). Carter argued that the trial court represented to
his attorney that it would consider resentencing him to only five years on the RVO
specification if Carter withdrew his motion to withdraw his guilty plea. (Id.).
Carter maintained that, because he refused to withdraw his motion, the trial court
punished him by resentencing him to 10 years on the RVO specification. (Id.).
Carter also filed that same day a motion asking Judge Warren to recuse himself in
light of his post-conviction petition’s allegations. (Doc. No. 94).
{¶10} On January 19, 2012, the trial court denied the motion to recuse, and
then, on January 27, 2012, denied Carter’s petition without a hearing. (Doc. Nos.
97-98).
{¶11} On February 15, 2012, Carter, pro se, filed a notice of appeal from
the trial court’s judgment denying his petition. (Doc. No. 100). On September 24,
2012, this Court affirmed the trial court’s judgment. (Doc. No. 107).
{¶12} On March 21, 2013, Carter, pro se, filed a second post-conviction
petition, which is the subject of this appeal. (Doc. No. 109). Carter alleged that
he was denied effective assistance of counsel during the plea bargaining
negotiations pursuant to Missouri v. Frye, 132 S.Ct. 1399 (2012). In particular,
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Carter alleged that trial counsel gave him misinformation regarding merger of
allied offenses, the nature of the charges, and the maximum sentence, and trial
counsel failed to conduct a diligent investigation. (Doc. No. 109).
{¶13} On April 4, 2013, the trial court denied the petition without a
hearing, finding that the issue of ineffective assistance was barred by res judicata,
and, alternatively, Carter failed to show ineffective assistance since the record
demonstrated that Carter entered his guilty plea voluntarily and knowingly. (Doc.
No. 110).
{¶14} On May 2, 2013, Carter, pro se, filed a notice of appeal. (Doc. No.
112). The trial court thereafter appointed Carter appellate counsel. (Doc. No.
117). Carter now appeals raising one assignment of error.
Assignment of Error
The Trial Court below committed an error prejudicial to the
Defendant by ruling the the [sic] Rulings of the Supreme Court
of the United States in Missouri v. Frye and Lafler v. Cooper
should not be applied in the Defendant’s case as retroactive
pronouncements of Constitutional Law allowing the Defendant a
full evidentiary hearing on Post Conviction [sic] Relief outside of
the 180 day time limitation as set by Ohio Statute.
{¶15} In his sole assignment of error, Carter argues that the trial court
failed to apply the U.S. Supreme Court’s decisions in Missouri v. Frye and Lafler
v. Cooper to his case. 132 S.Ct. 1399 (2012); 132 S.Ct. 1376 (2012). Carter
acknowledges that his post-conviction petition is outside the 180-day time
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limitation; however, he argues that R.C. 2953.23(A)(1)’s exception applies since
Frye and Cooper declared a retroactive constitutional right applicable to his case.
Carter further asserts that trial counsel was ineffective during the plea negotiations
because: (1) his signature on the plea negotiation form was not genuine; and, (2)
trial counsel advised him to plead to the indictment as charged and failed to
negotiate a lesser sentence or even obtain the State’s silence at sentencing.
{¶16} As Carter acknowledges, post-conviction petitions must generally be
filed within 180 days after the trial transcripts are filed in the court of appeals, if a
direct appeal is filed. R.C. 2951.23(A)(2). Carter admits that his petition is
untimely under this general rule. However, R.C. 2953.23 provides, in pertinent
part:
(A) * * * [A] court may not entertain a petition filed after the
expiration of the period prescribed in division (A) of that section or a
second petition or successive petitions for similar relief on behalf of
a petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) * * * subsequent to the period prescribed in division (A)(2) of
section 2953.21 of the Revised Code or to the filing of an earlier
petition, the United States Supreme Court recognized a new federal
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or state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was
convicted * * *.
{¶17} This Court has repeatedly stated that R.C. 2953.23(A) divests a trial
court of jurisdiction to hear a petition after the expiration of the one-hundred
eighty day period set by R.C. 2953.21(A)(2) unless an exception under R.C.
2953.23(A)(1) or (2) is met. State v. Draper, 3d Dist. Putnam No. 12-10-07,
2011-Ohio-773, ¶ 12; State v. Morgan, 3d Dist. Shelby No. 17-04-11, 2005-Ohio-
427, ¶ 5-6. “Once a court has determined that a petition is untimely, no further
inquiry into the merits of the case is necessary.” Morgan, at ¶ 6, citing State v.
Beaver, 131 Ohio App.3d 458 (11th Dist.1998). Trial courts should dismiss
untimely post-conviction motions for lack of jurisdiction; nevertheless, a trial
court does not commit reversible error by denying an untimely post-conviction
petition. State v. Hatfield, 10th Dist. Franklin No. 07AP-784, 2008-Ohio-1377, ¶
8, citing State v. Hamilton, 10th Dist. Franklin No. 03AP-852, 2004-Ohio-2573, ¶
9 and State v. Hensley, 9th Dist. Lorain No. 03CA008293, 2003-Ohio-6457, ¶ 7.
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{¶18} The facts of this case do not fall within the holdings of Frye and
Cooper. In Frye, the U.S. Supreme Court held that trial counsel had a duty to
communicate the terms of a plea offer to a defendant and that counsel may be
ineffective for failing to do so. 132 S.Ct. 1399. There is nothing in the record to
indicate that trial counsel failed to communicate the terms of the plea offer to
Carter triggering Frye. In fact, the trial court went over the terms of the agreement
with Carter during the change of plea hearing, and Carter acknowledged his
understanding of the same. (Oct. 26, 2009 Tr., passim). Furthermore, despite his
allegations on appeal that his signature on the plea agreement was not genuine,
Carter signed the plea agreement in open court and acknowledged the signature as
his own. (Id. at 10-11). It is noteworthy that, prior to accepting Carter’s change of
plea, the trial court informed Carter that whether the sentences would run
concurrently or consecutively was a contested issue the parties would brief and
that would be decided at the sentencing hearing. (Id. at 4).
{¶19} In Cooper, the U.S. Supreme Court held that counsel may be
ineffective when counsel’s advice led to the rejection of a plea deal that would
have resulted in a lesser sentence. 132 S.Ct. 1376. There is no indication in the
record that trial counsel advised Carter to reject a plea offer making Cooper
applicable herein.
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{¶20} Consequently, regardless of whether Frye and Cooper created a
retroactive constitutional right triggering R.C. 2953.23(A)(1)(a)’s exception to the
180-day time limitation, Frye and Cooper do not apply in this case. Therefore, the
trial court was presented with an untimely post-conviction petition under R.C.
2951.23(A) and should have dismissed it for lack of jurisdiction. Draper at ¶ 12;
Morgan at ¶ 5-6. Nevertheless, the trial court did not commit reversible error by
denying Carter’s petition in this case. Hatfield at ¶ 8, citing Hamilton at ¶ 9 and
Hensley at ¶ 7.
{¶21} Carter’s assignment of error is, therefore, overruled.
{¶22} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS and SHAW, J.J., concur.
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