[Cite as State v. Williams, 2013-Ohio-4897.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26890
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JERMAINE L. WILLIAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 10 3105 (B)
DECISION AND JOURNAL ENTRY
Dated: November 6, 2013
CARR, Judge.
{¶1} Appellant, Jermaine Williams, appeals the judgment of the Summit County Court
of Common Pleas. This Court affirms.
I.
{¶2} On October 22, 2009, Williams was indicted on one count of possession of
cocaine, one count of trafficking in cocaine, and one count of possession of criminal tools. The
first two counts in the indictment contained forfeiture specifications. Williams initially pleaded
not guilty to the charges at arraignment. Subsequently, on June 7, 2010, Williams appeared for a
change-of-plea hearing and pleaded guilty to the counts in the indictment. The trial court held a
sentencing hearing on October 20, 2010, and sentenced Williams to a total prison term of eight
years. The trial court issued its sentencing entry on October 22, 2010. Williams did not file an
appeal or seek a delayed appeal from the sentencing entry.
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{¶3} On March 18, 2013, Williams filed a pro se “motion to correct sentence.” The
State filed a memorandum in opposition on March 27, 2013. The trial court issued a journal
entry denying the motion on April 2, 2013.
{¶4} Williams has appealed from the trial court’s judgment entry denying his motion,
and raises five assignments of error.
II.
ASSIGNMENT OF ERROR I
TRIAL COURT ABUSED ITS [DISCRETION] BY ENTERING AN
INCORRECT JOURNAL ENTRY.
ASSIGNMENT OF ERROR II
TRIAL COURT ERRED IN NOT ADVISING OF [A] RIGHT TO APPEAL
PURSUANT TO CRIM.R. 32(B).
ASSIGNMENT OF ERROR III
TRIAL COURT ERRED [BY] FAILING TO DETERMINE THE NUMBER OF
DAYS OF CONFINEMENT OWED BEFORE SENTENCE WAS IMPOSED.
ASSIGNMENT OF ERROR IV
TRIAL COURT ERRED BY NOT CONSIDERING THE NECESSARY
FACTORS SET FORTH IN R.C. 2929.11 AND 2929.12.
ASSIGNMENT OF ERROR V
TRIAL COURT ERRED WHEN CONVICTING OF CHARGES THAT WERE
TO BE MERGED AS ALLIED OFFENSES OF SIMILAR IMPORT
PURSUANT TO R.C. 2941.25.
{¶5} In his five assignments of error, Williams raises numerous arguments relating to
his sentence, and contends that this case should be remanded for a new sentencing hearing.
{¶6} Williams raised several sentencing issues in his March 18, 2013 motion, including
that the sentencing entry did not reflect what happened at the sentencing hearing, that he was
never made aware of his right to appeal, and that the trial court failed to properly calculate jail
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time credit. Williams also argued that the trial court had failed to consider the sentencing factors
outlined in R.C. 2929.11 and R.C. 2929.12, and that he was improperly sentenced on allied
offenses of similar import. In light of these issues, Williams asked to be resentenced.
{¶7} While Williams styled his March 18, 2013 motion as a “Motion to Correct
Sentence,” he did not merely ask the trial court to correct a clerical error. Instead, Williams
advanced numerous substantive challenges relating to the legality of his sentence. The Supreme
Court of Ohio has held that, “[w]here a criminal defendant, subsequent to his or her direct
appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or
her constitutional rights have been violated, such a motion is a petition for post-conviction relief
as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158 (1997), at syllabus.
{¶8} R.C. 2953.21 establishes procedures for filing a petition for post-conviction relief.
R.C. 2953.21(A)(2) provides, in part, that:
[A] petition under division (A)(1) of this section shall be filed no later than one
hundred eighty days after the date on which the trial transcript is filed in the court
of appeals in the direct appeal of the judgment of conviction or adjudication or, if
the direct appeal involves a sentence of death, the date on which the trial
transcript is filed in the supreme court. If no appeal is taken, except as otherwise
provided in section 2953.23 of the Revised Code, the petition shall be filed no
later than one hundred eighty days after the expiration of the time for filing the
appeal.
{¶9} R.C. 2953.23(A)(1) provides for an exception to the time limit if the petitioner
can meet both of the following requirements:
(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 * * * 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
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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.
{¶10} In this case, Williams filed a motion seeking vacation of his sentence on the basis
that his constitutional rights were violated. Because the time to file a direct appeal had long
since lapsed at the time Williams filed his motion on March 18, 2013, we construe the motion as
a petition for post-conviction relief as defined in R.C. 2953.21. Reynolds, 79 Ohio St.3d at
syllabus.
{¶11} Pursuant to R.C. 2953.21(A)(2), a petition for post-conviction relief “shall be
filed no later than one hundred eighty days after the expiration of the time for filing the appeal.”
Here, Williams filed his petition more than two years after the time to file a timely appeal had
expired, well outside the 180-day window set forth in R.C. 2953.21(A)(2). In his petition,
Williams did not address how he was unavoidably prevented from discovering the facts upon
which his petition was based, nor did he claim a new retroactive right that has been recognized
by the United States Supreme Court. See R.C. 2953.23(A). Under these circumstances where
the petition was not timely filed, and where the petitioner did not address the statute’s timeliness
requirement, the trial court did not have jurisdiction to consider the petition. State v. Daniel, 9th
Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 10; State v. Perry, 9th Dist. Summit No. 26766,
2013-Ohio-4466, ¶ 9.
{¶12} Williams’ assignments of error are overruled.
III.
{¶13} Williams’ 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
BELFANCE, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
JERMAINE L. WILLIAMS, pro se, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.