[Cite as State v. Parks, 2014-Ohio-5365.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
MICHAEL R. PARKS
Defendant-Appellant
Appellate Case No. 2014-CA-9
Trial Court Case No. 2012-CR-111
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 5th day of December, 2014.
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R. KELLY ORMSBY, III, Atty. Reg. No. 0020615, Darke County Prosecuting Attorney, 504 South
Broadway, Greenville, Ohio 45331
Attorney for Plaintiff-Appellee
MICHAEL R. PARKS, Inmate No. A675-244, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe, Ohio 45601
Defendant-Appellant-Pro Se
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WELBAUM, J.
{¶ 1} Defendant-appellant, Michael R. Parks, appeals pro se from the decision of the
Darke County Court of Common Pleas denying his “Motion to Enforce Original Plea
Agreement,” which we will construe as a petition for postconviction relief. For the following
reasons, the judgment of the trial court will be affirmed.
{¶ 2} In 2006, the trial court sentenced Parks to five years in prison following his
conviction for sexual battery and tampering with evidence in Case Nos. 05-CR-13536 and
06-CR-13578. After serving his five-year prison sentence, Parks began serving five years of
mandatory postrelease control under the supervision of the Adult Parole Authority (“APA”).
{¶ 3} On June 29, 2012, while still under APA supervision, Parks was indicted by the
Darke County Grand Jury for nine counts of gross sexual imposition in violation of R.C.
2907.05(A)(4), all felonies of the third degree. Each count included a specification requiring a
mandatory prison term due to the victim being a child under the age of 13.
{¶ 4} Pursuant to a plea agreement, on November 16, 2012, Parks entered an Alford
plea of guilty to one count of gross sexual imposition with the specification for a mandatory
prison term. In exchange for Parks’s guilty plea, the State dismissed the remaining eight counts
and the parties jointly recommended a mandatory prison term of 36 months. On November 20,
2012, the trial court accepted the jointly recommended sentence and imposed a 36-month prison
term.
{¶ 5} On May 2, 2014, approximately one and a half years later, Parks filed a “Motion
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to Enforce Original Plea Agreement” with the trial court. In the motion, Parks contended that
his sentence and conviction for gross sexual imposition should be vacated for violating the
Double Jeopardy Clause of both the Ohio and United States Constitutions. Specifically, Parks
claimed his rights under the Double Jeopardy Clause were violated because, prior to his
conviction for gross sexual imposition, the APA had already imposed a judgment and
punishment against him for the conduct that was the basis of that offense. On June 4, 2014, the
trial court denied Parks’s motion.
{¶ 6} Parks now appeals from the trial court’s decision denying his motion. He did
not, however, set forth any assignments of error for our review as required by App.R. 16(A)(3).
Nevertheless, we infer from his appellate brief that he is claiming the trial court erred in
overruling his motion on grounds that his conviction and sentence violates the Double Jeopardy
Clause.
{¶ 7} Despite its caption, the substance of Parks’s motion meets the definition of a
petition for postconviction relief as set forth in R.C. 2953.21(A)(1). Specifically, the motion: (1)
was filed subsequent to the expiration of the time Parks could file a direct appeal; (2) claimed a
denial of constitutional rights under the Double Jeopardy Clauses of the Ohio and United States
Constitutions; (3) sought to render the judgment void; and (4) asked to vacate the sentence and
conviction. See State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Moreover,
it is well established that “ ‘[c]ourts may recast irregular motions into whatever category
necessary to identify and establish the criteria by which the motion should be judged.’ ” State v.
Caldwell, 2d Dist. Montgomery No. 24333, 2012-Ohio-1091, ¶ 3, quoting State v. Schlee, 117
Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. (Other citation omitted.) Accordingly,
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we shall review Parks’s “Motion to Enforce Original Plea Agreement” as a petition for
postconviction relief.
{¶ 8} Petitions for postconviction relief are governed by R.C. 2953.21, which provides,
in pertinent part, that:
Any person who has been convicted of a criminal offense * * * and who claims
that there was such a denial or infringement of the person’s rights as to render the
judgment void or voidable under the Ohio Constitution or the Constitution of the
United States, * * * may file a petition in the court that imposed sentence, stating
the grounds for relief relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief. The petitioner may file a
supporting affidavit and other documentary evidence in support of the claim for
relief.
R.C. 2953.21(A)(1)(a).
{¶ 9} R.C. 2953.21 also sets forth certain time constraints for filing petitions for
postconviction relief. Pursuant to section (A)(2) of the statute, if a defendant does not directly
appeal his judgment of conviction, “the petition shall be filed no later than one hundred eighty
days after the expiration of the time for filing the appeal.” R.C. 2953.21(A)(2). “The trial court
lacks jurisdiction to consider an untimely petition for post-conviction relief, unless the
untimeliness is excused under R.C. 2953.23(A)(1).” State v. Buennagel, 2d Dist. Greene No.
2010 CA 74, 2011-Ohio-3413, ¶ 25, citing State v. West, 2d Dist. Clark No. 08CA0102,
2009-Ohio-7057, ¶ 7.
{¶ 10} “Pursuant to R.C. 2953.23(A)(1)(a), a defendant may file an untimely petition for
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postconviction relief if (1) he was unavoidably prevented from discovering the facts upon which
he relies to present his claim, or (2) the United States Supreme Court recognizes a new right that
applies retroactively to his situation.” Id. “ ‘The phrase “unavoidably prevented” means that a
defendant was unaware of those facts and was unable to learn of them through reasonable
diligence.’ ” Id., quoting State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19.
The defendant must also show by clear and convincing evidence that, if not for the constitutional
error from which he suffered, no reasonable factfinder would have found him guilty. R.C.
2953.23(A)(1)(b).
{¶ 11} In this case, Parks’s petition for postconviction relief is untimely. Parks was
convicted and sentenced on November 20, 2012. According to App.R. 4(A), he had 30 days, or
until December 20, 2012, to file a direct appeal from his conviction. Parks did not file a direct
appeal; therefore, he had 180 days from December 20, 2012, to file a timely petition for
postconviction relief. Parks, however, did not file his petition until May 2, 2014, well after the
statutory deadline. In addition, we also note that Parks does not meet either exception for filing
an untimely petition under R.C. 2953.23(A)(1)(a). As a result, the trial court lacked jurisdiction
to consider Parks’s untimely petition and it was appropriately overruled.
{¶ 12} The judgment of the trial court is affirmed.
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FROELICH, P.J. and HALL, J., concur.
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Copies mailed to:
R. Kelly Ormsby, III
Michael R. Parks
Hon. Jonathan P. Hein