[Cite as State v. Holland, 2012-Ohio-1404.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2011-CAO-122
BRIAN E. HOLLAND :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Licking County
Court of Common Pleas, Case No.
10CR628
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: March 28, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT BRIAN E. HOLLAND PRO SE
Licking County Prosecutor #647-963 BECI
BY: JUSTIN T. RADIC P.O. Box 540
20 South Second St., 4th Floor St. Clairsville, OH 43950
Newark, OH 43055
[Cite as State v. Holland, 2012-Ohio-1404.]
Gwin, P.J.
{1} Defendant-appellant Brian E. Holland appeals a judgment of the Court of
Common Pleas of Licking County, Ohio, which found his petition to vacate or set aside
judgment of conviction or sentence is untimely and a duplication of his direct appeal.
Appellant assigns two errors to the trial court:
{2} “I. TRIAL COURT ERRORED [SIC] WHEN IT DISMISSED PETITION FOR
POST CONVICTION RELIEF O.R.C. 2953.21.
{3} “II. TRIAL COURT ERRORED [SIC] WHEN IT RULED THAT
PETITIONER’S DIRECT APPEAL AND POST CONVICTION PETITION ARE A
DUPLICATION OF EACH OTHER.”
{4} The State concedes appellant’s petition for post-conviction relief was filed
within the time required by R.C. 2953.21 (A)(2).
{5} Appellant argues the trial court erred in not granting him an evidentiary
hearing on the merits of his motion. An evidentiary hearing is not automatically required
for every petition seeking post-conviction relief. State v. Gondor, 112 Ohio St.3d 377,
2006–Ohio–6679, at ¶ 51. While a trial court does not have jurisdiction to review an
untimely petition unless it meets with certain exceptions, if it is timely, the court must
determine if the petition sets forth sufficient operative facts to establish substantive
grounds for relief. R.C. 2953.21(G). The statute requires a court to make findings of
fact and conclusions of law if it finds there are no grounds for granting relief.
{6} The trial court found the petition was untimely, and did not make findings of
fact and conclusions of law. Because we find the petition was filed in a timely manner,
we reverse and remand with instructions for the court to review merits of the petition
Licking County, Case No. 2011-CAO-122 3
and determine if a hearing is necessary. If the court determines no hearing is necessary
it should make the appropriate findings of fact and conclusions of law.
{7} The first assignment of error is sustained. The second assignment of error
is premature.
{8} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is reversed, and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion.
By Gwin, P.J., and
Wise, J., concur
Hoffman, J., dissents
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE
WSG:clw 0321
Licking County, Case No. 2011-CAO-122 4
Hoffman, J., dissenting
{¶9} I respectfully dissent from the majority opinion.
{¶10} The trial court found Appellant’s petition was a duplication of his direct
appeal. Although sparse, such finding nevertheless can support its “undesignated”
legal conclusion Appellant’s petition is barred by res judicata.
________________________________
HON. WILLIAM B. HOFFMAN
[Cite as State v. Holland, 2012-Ohio-1404.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
BRIAN E. HOLLAND :
:
:
Defendant-Appellant : CASE NO. 2011-CAO-122
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Licking County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to appellee.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. JOHN W. WISE