[Cite as State v. Davis, 2015-Ohio-5182.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 15CA0004-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ERIC JOEL DAVIS COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE Nos. 6777 (80CR0229)
6852 (81CR0001)
DECISION AND JOURNAL ENTRY
Dated: December 14, 2015
SCHAFER, Judge.
{¶1} Defendant-Appellant, Eric J. Davis, appeals the judgment of the Medina County
Court of Common Pleas denying his “Motion to Vacate Void Sentence.” This Court affirms.
I.
{¶2} This is the third appeal Davis has filed involving his criminal convictions and
sentence. In a prior appeal, State v. Davis, 9th Dist. Medina No. 13CA0104-M, 2014-Ohio-4122
(“Davis II”), this Court set forth the basic underlying factual and procedural history as follows:
In 1981, Mr. Davis was convicted of multiple offenses, including counts
of murder, arson, and aggravated burglary. Mr. Davis appealed, and this Court
affirmed his convictions. State v. Davis, 4 Ohio App.3d 199 (9th Dist.1982).
In 2013, Mr. Davis filed a motion in the trial court asking the court to
vacate his sentencing entry, which he argued was void for failing to contain the
manner of conviction: that he was found guilty by a jury. The trial court denied
the motion in an entry dated December 5, 2013.
Davis II at ¶ 2-3.
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{¶3} On appeal, this Court affirmed the trial court’s judgment denying Davis’ motion
to vacate his sentencing entry, but remanded the matter for a nunc pro tunc sentencing entry to
clarify the manner of conviction under Crim.R. 32(C). Id. at ¶ 10. On remand, the trial court
corrected Davis’ sentencing entry to specify the manner of conviction. Davis subsequently filed
a “Motion to Vacate Void Sentence” on November 18, 2014, which the trial court denied.
{¶4} Davis now appeals, raising one assignment of error for this Court’s review.
II.
Assignment of Error
The trial court erred and exceeded its authority, rendering the life sentence
imposed a nullity or void, by its failure to comply with Ohio mandatory
sentencing requirements when imposing a sentence. [sic] when Appellant was
sentenced twice for the same offense.
{¶5} In his sole assignment of error, Davis argues that the trial court erred by denying
his “Motion to Vacate Void Sentence” as his sentence is contrary to law. We disagree as Davis’
motion is untimely.
{¶6} A vaguely titled motion, including a motion to correct or vacate a judgment or
sentence, may be construed as a petition for post-conviction relief under R.C. 2953.21(A)(1)
where (1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of
constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation of the
judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160 (1997). Davis’ motion meets
these four requirements. Accordingly, we determine that the trial court correctly construed
Davis’ “Motion to Vacate Void Sentence” as a petition for post-conviction relief. See State v.
Caldwell, 3d Dist. Paulding No. 11-05-07, 2005-Ohio-5375, ¶ 9.
{¶7} Pursuant to former 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
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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.1 Additionally, R.C. 2953.23(A) precludes trial courts
from “entertain[ing]” untimely petitions for post-conviction relief, unless one of the statute’s
exceptions applies. For the purposes of this appeal, only R.C. 2953.23(A)(1)’s exception could
potentially apply and it provides that both of the following conditions must exist for a trial court
to entertain an untimely petition for post-conviction relief:
(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 [time limitation], 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 petition 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 petition was convicted[.]
“A defendant’s failure to either timely file a petition for post-conviction relief or meet his burden
under R.C. 2953.23(A)(1) deprives a trial court of jurisdiction to entertain the petition.” State v.
Taylor, 9th Dist. Lorain No. 14CA010549, 2014-Ohio-5738, ¶ 9.
{¶8} Here, the record reveals that the trial transcript was filed in Davis’ direct appeal in
August of 1981. Davis could have filed his petition at any time from 1981 until 1996, when the
180-day deadline was first adopted. However, Davis did not file the instant petition for post-
conviction relief until November 18, 2014, well beyond the statutorily permitted time-frame for
doing so. See former R.C. 2953.21(A)(2). Moreover, Davis has not argued on appeal that either
of the exceptions set forth in R.C. 2953.23(A) is applicable to his case. Therefore, we conclude
that Davis’ petition for post-conviction relief is untimely. As such, the trial court lacked
1
2014 Am.S.B. No. 361 increased R.C. 2953.21(A)(2)’s time limitation for filing a post-
conviction relief petition to 365 days. Since the effective date of S.B. 361 postdates the filing of
Davis’ motion and the trial court’s ruling, we rely on the former time limitation. State v. Heid,
4th Dist. Scioto No. 14CA3655, 2015-Ohio-1467, ¶ 18.
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jurisdiction to entertain Davis’ motion and we determine that the trial court did not err in denying
it. See State v. Stepler, 9th Dist. Summit No. 23354, 2006-Ohio-6913, ¶ 9.
{¶9} Davis’ assignment of error is overruled.
III.
{¶10} Davis’ sole assignment of error is overruled and the judgment of the Medina
County Court of Common Pleas is affirmed.
Judgment affirmed.
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 Medina, 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.
JULIE A. SCHAFER
FOR THE COURT
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HENSAL, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
ERIC JOEL DAVIS, pro se, Appellant.
DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.