JUDGMENT ENTRY This appeal, considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, is not controlling authority except as provided in S.Ct.R.Rep.Op. 2(G)(1).
Defendant-appellant, Dwight L. Price, appeals the judgment of the Hamilton County Court of Common Pleas denying his motion to withdraw guilty pleas. For the following reasons, we affirm the trial court's judgment.
On September 21, 1995, Price entered guilty pleas to one count each of involuntary manslaughter and aggravated robbery, with a firearm specification. On January 27, 1999, he filed a motion to withdraw the guilty pleas under Crim. R. 32.1. The trial court denied the motion, and Price filed the instant appeal.
In his sole assignment of error, Price contends that the trial court erred in denying his motion without an evidentiary hearing. We are not persuaded by this argument. As we have previously held, a motion filed pursuant to Crim.R. 32.1 must be filed before the expiration of the time for a direct appeal.1 Otherwise, the motion should be construed as a petition for postconviction relief and therefore subject to the time constraints set forth in R.C. 2953.21 and 2953.23.2
In the case at bar, Price filed the motion to withdraw the guilty pleas well past the time allotted for a direct appeal. Thus, we construe the motion as a petition for postconviction relief. Construed as such under R.C. 2953.21(A)(2), it was not timely filed within one hundred eighty days after the expiration of the time for a direct appeal. Further, Price failed to demonstrate entitlement to file an untimely petition pursuant to R.C. 2953.23. Accordingly, the trial court was without jurisdiction to entertain the petition and properly denied the requested relief without conducting an evidentiary hearing, even though it relied on other grounds to do so.3
Therefore, the judgment of the trial court is affirmed.
Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.
DOAN, P.J., GORMAN and SHANNON, JJ.
RAYMOND E. SHANNON, retired, of the First Appellate District, sitting by assignment.
1 See State v. Hill (1998), 129 Ohio App.3d 658,718 N.E.2d 978, jurisdictional motion overruled (1999), 84 Ohio St.3d 1468,704 N.E.2d 578.
2 Id.
3 Id.