[Cite as State v. Thompson, 2015-Ohio-5102.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 15 CAA 09 0067
ZACHARY D. THOMPSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Caes No. 08CR I 08 0407
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 7, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN ZACHARY D. THOMPSON, PRO SE
COUNTY PROSECUTOR'S OFFICE 15708 McConnelsville Road
140 North Sandusky Street, 3rd Floor Caldwell, Ohio 43724
Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 09 0067 2
Wise, J.
{¶1} Defendant-Appellant Zachary Thompson appeals the August 18, 2015,
Judgment Entry of the Delaware County Court of Common Pleas denying his petition for
post-conviction relief.
{¶2} Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE
{¶3} On December 1, 2009, Appellant entered a plea of guilty to two counts of
aggravated vehicular homicide, in violation of R.C. §2903.06(A)(1)(a) and R.C.
§2903.06(A)(2)(a).
{¶4} On January 27, 2010, the trial court sentenced Appellant to five (5) years in
prison, the first two years being mandatory, on each of the two counts, the sentences to
be served consecutively. The trial court further ordered Appellant pay costs and restitution
in the sum of $11,466.29. In addition, Appellant’s driver’s license was suspended for life.
{¶5} The State appealed, assigning as error:
{¶6} “I. THE SENTENCE OF FIVE YEARS WITH ONLY TWO YEARS BEING
MANDATORY FOR EACH COUNT OF AGGRAVATED VEHICULAR HOMICIDE
IMPOSED CONSECUTIVELY BY THE TRIAL JUDGE WAS UNLAWFUL AND VOID
BECAUSE R.C. 2903.06(E) REQUIRES THE ENTIRE PRISON TERM TO BE
MANDATORY.”
{¶7} Defendant-Appellant, cross-appealed, assigning as error:
{¶8} “THE CONSECUTIVE SENTENCES IMPOSED UPON APPELLEE WERE
CONTRARY TO LAW AS THE TRIAL COURT FAILED TO MAKE THE REQUISITE
FINDINGS UNDER O.R.C. §2929.14(E).”
Delaware County, Case No. 15 CAA 09 0067 3
{¶9} This Court overruled both the State’s and the Defendant’s assignments of
error and affirmed the trial court’s decision.
{¶10} On May 28, 2013, Appellant filed a Motion to Withdraw Guilty Pleas.
{¶11} On June 11, 2013, the State filed a Memorandum Contra.
{¶12} On August 15, 2013, Appellant filed a Response and a Motion: Submitting
Evidence to Supplement Defendant’s Motion to Withdraw Guilty Pleas.
{¶13} By Judgment Entry filed March 14, 2014, the trial court denied Appellant’s
motion.
{¶14} Appellant filed an appeal to this Court, Case No. 14 CAA 04 0021,
challenging the trial court’s denial of his motions to withdraw his guilty plea and raising
claims of ineffective assistance of counsel. By Opinion and Entry dated January 13, 2015,
this Court affirmed the trial court’s denials of Appellant’s motions.
{¶15} On March 9, 2015, Appellant filed another motion to withdraw his guilty plea,
pro se.
{¶16} On March 11, 2015, Appellant filed a motion to re-open his appeal, which
was denied by this Court.
{¶17} On March 12, 2015, the trial court denied Appellant’s motion to withdraw his
guilty plea.
{¶18} On June 1, 2015, Appellant filed a Notice of Appeal with the Ohio Supreme
Court requesting that it accept jurisdiction to hear his appeal.
{¶19} On July 27, 2015, Appellant filed a petition for post-conviction relief.
{¶20} On August 18, 2015, the trial court denied Appellant’s petition for post-
conviction relief.
Delaware County, Case No. 15 CAA 09 0067 4
{¶21} On August 26, 2015, the Ohio Supreme Court declined to accept
Appellant’s appeal.
{¶22} Appellant now appeals, assigning the following error for review:
ASSIGNMENTS OF ERROR
{¶23} “I. DEFENDANT THOMPSON ENTERED HIS PLEAS AS A RESULT OF
HIS BEING INDUCED INTO PLEADING GUILTY BY DEFENSE COUNSEL; THE PLEA
THEREFORE WAS NOT VOLUNTARY AND KNOWINGLY ENTERED.
{¶24} “II. TRIAL COUNSEL WAS INEFFECTIVE UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION WHEN HE
ADVISED THE DEFENDANT TO PLEAD GUILTY AND REPRESENTED TO
DEFENDANT HE WOULD RECEIVE A 5 YEAR PRISON TERM; THE DEFENDANT
WAS PREJUDICED BY SUCH REPRESENTATION WHEN THE TRIAL COURT
IMPOSED A 10 YEAR SENTENCE.
{¶25} “III. THE DEFENDANT’S GUILTY PLEA WAS INVALID AND VIOLATIVE
OF THE DEFENDANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS
THE COURT FAILED TO DETERMINE THAT THE PLEA WAS MADE FREE OF ANY
PROMISES OR OTHER INDUCEMENTS.
{¶26} “IV. THE TRIAL COURT ERRED IN DISMISSING THE PETITION
WITHOUT HAVING AN EVIDENTIARY HEARING ON THE ISSUE OF
VOLUNTARINESS OF THE GUILTY PLEA AND ON THE ISSUE OF THE FAILURE OF
APPELLANT [SIC] [TRIAL] COUNSEL TO PROVIDE COMPETENT LEGAL ADVICE.
{¶27} “V. IT CONSTITUTED ERROR FOR THE COURT BELOW TO APPLY THE
WRONG STANDARD OF PROOF.
Delaware County, Case No. 15 CAA 09 0067 5
{¶28} “VI. TRIAL COURT ERROR [SIC] WHEN IT HELD IT LACK [SIC]
JURISDICTION TO ENTERTAIN A [SIC] UNTIMELY PETITION WHEN APPELLANT’S
CONVICTION AND SENTENCE IS VOID.”
I., II., III.
{¶29} In his first three Assignments of Error, Appellant argues that the trial court
erred in denying his motions to withdraw his guilty pleas. More specifically, Appellant
argues that his trial counsel was ineffective and that his guilty pleas were not made
voluntarily.
{¶30} Upon review, this Court finds that the issues set forth in these assignments
of error were raised in Appellant’s prior appeal. This Court has therefore previously
considered these arguments and found them to be not well-taken.
{¶31} Accordingly, we find that the claims in these assignments of error are barred
by the doctrine of res judicata.
{¶32} Appellant’s Assignments of Error I, II, and III are overruled.
IV., V., VI.
{¶33} In his Fourth, Fifth and Sixth Assignments of Error, Appellant argues that
the trial court abused its discretion in denying his petition for post-conviction relief. We
disagree.
{¶34} Appellant contends that the trial court erred by denying his motion without
conducting an evidentiary hearing. We apply an abuse of discretion standard when
reviewing a trial court's decision to deny a post-conviction relief petition without a hearing.
State v. Holland, 5th Dist. Licking No. 12–CA–56, 2013–Ohio–905. An abuse of discretion
connotes more than an error of law or judgment; it entails a decision that is unreasonable,
Delaware County, Case No. 15 CAA 09 0067 6
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d
1140 (1983).
{¶35} Under R.C. §2953.21, a petitioner seeking post-conviction relief is not
automatically entitled to an evidentiary hearing. State v. Calhoun, 86 Ohio St.3d 279, 714
N.E.2d 905 (1999). The Ohio Supreme Court has held that the proper basis for dismissing
a petition for post-conviction relief without holding an evidentiary hearing includes: (1) the
failure of the petitioner to set forth sufficient operative facts to establish substantive
grounds for relief, and (2) the operation of res judicata to bar the constitutional claims
raised in the petition. Id.; State v. Lentz, 70 Ohio St.3d 527, 639 N.E.2d 784 (1994). In
this case, the record reflects that Appellant failed to submit any supporting affidavits or
other evidentiary documents containing sufficient operative facts to support any of the
claims presented.
{¶36} Further, under the doctrine of res judicata, a defendant who was
represented by counsel is barred from raising an issue in a petition for post-conviction
relief if the defendant raised or could have raised the issue at trial or on direct appeal.
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v. Szefcyk, 77 Ohio St.3d
93, 1996–Ohio–337, 671 N.E.2d 233.
{¶37} The allegations Appellant makes in his petition could all have been raised
or were raised in his direct appeal. Therefore, the trial court did not abuse its discretion in
overruling Appellant's motion without a hearing.
{¶38} Finally, Appellant's petition for post-conviction relief should have been
denied or dismissed without a hearing because it was filed well beyond the time limits set
by R.C. §2953.21.
Delaware County, Case No. 15 CAA 09 0067 7
{¶39} R.C. §2953.21 requires that a petition for post-conviction relief be filed no
later than three hundred sixty five 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. In this case, the
transcript was filed with this Court on March 22, 2010, therefore requiring his petition to
be filed no later than March 22, 2011. Appellant has made no attempt to show that any of
the exceptions to R.C. §2953.23(A)(1) applies to his untimely motion.
{¶40} When a petition for post-conviction relief is filed untimely and does not meet
the requirements of R.C. §2953.23(A)(1), a trial court lacks jurisdiction to entertain the
merits of the petition or hold a hearing. State v. Lynn, 5th Dist. Muskingum No. CT2007–
0046, 2008–Ohio–2149. Accordingly, the trial court did not err in failing to conduct an
evidentiary hearing on the motion as it was untimely filed. Id.
{¶41} Appellant’s Fourth, Fifth and Sixth Assignments of Error are overruled.
{¶42} For the foregoing reasons, the decision of the Court of Common Pleas of
Delaware County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Farmer, J., concur.
JWW/d 1119