[Cite as State v. Hendricks, 2014-Ohio-683.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26978
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MICHAEL W. HENDRICKS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 02 0594(B)
DECISION AND JOURNAL ENTRY
Dated: February 26, 2014
CARR, Presiding Judge.
{¶1} Appellant, Michael Hendricks, appeals the judgment of the Summit County Court
of Common Pleas. This Court affirms.
I.
{¶2} On March 18, 2009, Michael Hendricks was indicted on numerous criminal
offenses. After a jury trial, Hendricks was convicted of one count of illegal possession of
chemicals for the manufacture of drugs, one count of possession of criminal tools, one count of
aggravated possession of drugs, and three counts of endangering children. The trial court
sentenced Hendricks to a nine-year term of incarceration. The trial court also imposed a
mandatory three-year term of post-release control.
{¶3} Hendricks filed a timely notice of appeal. On August 3, 2011, this Court affirmed
Hendricks’ convictions. State v. Hendricks, 9th Dist. Summit No. 25133, 2011-Ohio-3796.
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{¶4} More than three years after he was convicted, on March 7, 2013, Hendricks filed a
“Motion to Vacate and Set Aside Sentence.” The State filed a brief in opposition. The trial court
issued a journal entry denying Hendricks’ motion.
{¶5} On appeal, the Hendricks raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PREJUDIC[IAL] ERROR WHEN THE COURT CONSIDERED THE
DEFENDANT[’S] MOTION TO VACATE AND SET ASIDE SENTENCE AS
A[N] UNTIMELY PETITION FOR POSTCONVICTION RELIEF R.C.
2953.21(A)(1)/(A)(2).
ASSIGNMENT OF ERROR II
TRIAL COURT COMMITTED PREJUDIC[IAL] ERROR IN FAILING TO
CONDUCT A HEARING TO DETERMINE WHETHER COUNT[S] 5, 6, AND
7 ARE ALLIED OFFENSES OF SIMILAR IMPORT R.C. 2941.25(A) IN
VIOLATION OF THE APPELLANT[’S] UNITED STATES
CONSTITUTIONAL RIGHTS AMENDMENT 5 AND 14 DOUBLE
JEOPARDY.
{¶6} In support of his assignments of error, Hendricks contends that the trial court
erred in construing his motion as a petition for post-conviction relief because he identified a
post-release control error that rendered his sentence void. Hendricks further argues that the trial
court failed to recognize that he was convicted of allied offenses of similar import. This Court
disagrees with both propositions.
{¶7} Hendricks argues that the trial court erred by failing to impose a post-release
control term for each of his felony convictions. The trial court specifically addressed this
argument in its May 24, 2013 judgment entry, and rejected it on the basis that R.C. 2967.28
provides for the imposition of only one term of post-release control when a defendant is
convicted of multiple felonies. This Court has held that R.C. 2967.28 “does not permit a trial
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court to order a term of postrelease control for each separate felony conviction; only ‘[o]ne term
of post-release control for multiple convictions is proper.’” State v. Deskins, 9th Dist. Lorain
No. 10CA009875, 2011-Ohio-2605, ¶ 22, citing State v. Maag, 3d Dist. Hancock No. 5-08-35,
2009-Ohio-90, ¶ 18. Thus, as the trial court was not required to impose multiple terms of post-
release control, Hendricks’ post-release control argument is without merit.
{¶8} With respect to Hendricks’ argument that he was sentenced on allied offenses of
similar import, this Court has held that where a defendant “[does] not properly raise issues
relating to whether the trial court sentenced him on allied offenses of similar import in his first
appeal, his motion must be construed as a petition for post-conviction relief.” State v. Williams,
9th Dist. Summit No. 25879, 2011-Ohio-6141, ¶ 13. As Hendricks did not raise the allied
offenses issue in his direct appeal, the trial court correctly construed his motion as a petition for
post-conviction relief.
{¶9} Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief must be filed
no later than 180 days after the day the trial transcript is filed in the direct appeal from the
judgment of conviction and sentence, or, if no direct appeal is taken, 180 days after the
expiration of the time to file an appeal. A trial court is not permitted to entertain a petition that is
filed after the time frame unless the conditions of R.C. 2953.23(A)(1) or (A)(2) are met. State v.
Hoffmeyer, 9th Dist. Summit No. 25477, 2011-Ohio-1046, ¶ 7; R.C. 2953.23(A). Specifically,
R.C. 2953.23(A) states:
Whether a hearing is or is not held on a petition filed pursuant to section 2953.21
of the Revised Code, 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:
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(a) Either the petitioner shows that the petitioner was unavoidably prevented from
discovery of the facts upon which the petitioner must rely to present the claim for
relief, or, 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 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 or, if the
claim challenges a sentence of death that, but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the petitioner
eligible for the death sentence.
(2) The petitioner was convicted of a felony, the petitioner is an offender for
whom DNA testing was performed under sections 2953.71 to 2953.81 of the
Revised Code or under former section 2953.82 of the Revised Code and analyzed
in the context of and upon consideration of all available admissible evidence
related to the inmate’s case as described in division (D) of section 2953.74 of the
Revised Code, and the results of the DNA testing establish, by clear and
convincing evidence, actual innocence of that felony offense or, if the person was
sentenced to death, establish, by clear and convincing evidence, actual innocence
of the aggravating circumstance or circumstances the person was found guilty of
committing and that is or are the basis of that sentence of death.
{¶10} Here, the trial court correctly concluded that Hendricks’ petition was untimely.
Hendricks filed his petition more than three years after the journalization of his convictions, well
outside the 180-day window outlined in R.C. 2953.21(A)(2). In support of his petition,
Hendricks did not attempt to satisfy the conditions of R.C. 2953.23(A)(1) or (A)(2). Therefore,
as Hendricks failed to comply with the statutory requirements for filing a petition for post-
conviction relief, the trial court was without authority to entertain the merits his petition.
{¶11} Hendricks’ assignments of error are overruled.
III.
{¶12} Hendricks’ two assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
MICHAEL HENDRICKS, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.