[Cite as State v. Aultman, 2017-Ohio-758.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2016-CA-14
:
v. : Trial Court Case No. 2013-CR-188
:
WILLIAM E. AULTMAN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of March, 2017.
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JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 1886 Brock Road NE, Bloomingburg,
Ohio 43106
Attorney for Defendant-Appellant
.............
WELBAUM, J.
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{¶ 1} Defendant-appellant, William E. Aultman, appeals from the decision of the
Champaign County Court of Common Pleas dismissing his petition for postconviction
relief in which Aultman requested his sentence be vacated on grounds that his
constitutional rights to due process and effective assistance of counsel were violated
during his sentencing hearing. For the reasons outlined below, the judgment of the trial
court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On July 2, 2013, Aultman was charged by bill of information with two counts
of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree.
The charges arose from allegations that Aultman placed his hand on the genitalia of two
minors who were less than 13 years of age.
{¶ 3} At his arraignment, Aultman accepted service of the bill of information,
waived the reading of the bill of information, waived his right to indictment by grand jury,
and pled guilty as charged pursuant to a plea agreement with the State. In exchange for
Aultman’s guilty plea, the State agreed not to pursue charges for sexual misconduct
against an alleged third minor victim. The State also agreed to recommend and review
a presentence investigation report prior to sentencing. In addition, the parties jointly
agreed that a prison sentence was presumed, but not mandatory, under RC.
2907.05(C)(2)(a)-(b).
{¶ 4} After Aultman entered his guilty plea, the trial court accepted the plea,
ordered a presentence investigation, and scheduled the matter for sentencing. At
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sentencing, the trial court classified Aultman as a Tier II sex offender and then proceeded
to consider several matters before imposing a sentence. Specifically, the trial court
considered the presentence investigation report and the statements given by counsel and
the victims’ representatives at the sentencing hearing. The trial court also considered
Aultman’s answers to various questions posed by the court at the sentencing hearing
regarding Aultman’s own history of sexual abuse as a child, his military history, the prior
instances of sexual abuse that he had admitted to committing against earlier generations
of victims, and his failure to seek treatment or counseling. After considering these
issues, the trial court sentenced Aultman to serve five years in prison for each of his gross
sexual imposition offenses and ordered each sentence to be served consecutively for a
total prison term of ten years. The trial court also ordered Aultman to pay an aggregate
fine of $2,000 and court costs.
{¶ 5} Aultman did not file a direct appeal from his conviction and sentence.
However, almost three years after being sentenced, on May 13, 2016, Aultman filed a
petition for postconviction relief. In his petition, Aultman conceded his guilt, but
requested his sentence be vacated on grounds that his constitutional right to due process
was violated during the sentencing hearing when the trial court questioned him about his
failure to seek counseling. Specifically, Aultman argued that the trial court’s questions
on that topic could only be answered by a professional, not a “disturbed layman” such as
himself. Aultman also argued that his trial counsel was ineffective in failing to object to
the trial court’s line of questioning at the sentencing hearing.
{¶ 6} On June 7, 2016, after the State filed a memorandum opposing Aultman’s
petition for postconviction relief, the trial court issued a decision dismissing the petition.
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In dismissing Aultman’s petition, the trial court found that it lacked jurisdiction to consider
the petition because it was filed beyond the time period set forth in R.C. 2953.21(A)(2)
and it did not meet any of the exceptions to untimeliness in R.C. 2953.23(A).
{¶ 7} Aultman now appeals from the trial court’s decision dismissing his petition for
postconviction relief, raising one assignment of error for review.
Assignment of Error
{¶ 8} Aultman’s assignment of error is as follows:
A SENTENCING THAT REQUIRES PROFESSIONAL TESTIMONY AND
SUCH TESTIMONY IS NOT PRESENTED DUE TO THE
INEFFECTIVENESS OF COUNSEL MUST BE VACATED.
{¶ 9} Under his sole assignment of error, Aultman raises the same due process
and ineffective assistance claims that he raised in his petition for postconviction relief.
While Aultman concedes that his petition was not filed within the time period provided in
2953.21(A)(2), he attempts to bypass the time limitation by applying Crim.R. 32.1, which
governs motions to withdraw guilty pleas and does not contain a specific time limitation
for filing.1 See Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 9,
citing State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977) and State v. Bush,
96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 14. In doing so, Aultman is
essentially asking this court to treat plea withdrawal motions and petitions for
postconviction relief as interchangeable remedies. We decline Aultman’s invitation.
In his appellate brief, Aultman claims he filed both a petition for postconviction relief and
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motion to withdraw guilty plea on May 13, 2016; however, the record indicates that only
a filing captioned “Petition for Post Conviction Relief” was ever filed.
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{¶ 10} Crim.R. 32.1 provides that “to correct manifest injustice[,] the court after
sentence may set aside the judgment of conviction and permit the defendant to withdraw
his or her plea.” Therefore, “[a] criminal defendant can seek under Crim.R. 32.1 to
withdraw a plea after the imposition of sentence.” Bush at ¶ 14, citing Smith at paragraph
one of the syllabus. In contrast, “ ‘[p]ostconviction relief is a means by which the
petitioner may present constitutional issues to the court that would otherwise be
impossible to review because the evidence supporting those issues is not contained in
the record of the petitioner’s criminal conviction.’ ” State v. Clark, 2017-Ohio-120,
___N.E.3d___, ¶ 14 (2d Dist.), quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391,
¶ 37 (10th Dist.). Postconviction relief “ ‘is the exclusive remedy by which a person may
bring a collateral challenge to the validity of a conviction or sentence in a criminal case *
* *.’ ” Bush at ¶ 13, quoting R.C. 2953.21(J).
{¶ 11} “Given that a postsentence Crim.R. 32.1 motion is not collateral but is filed
in the underlying criminal case and that it targets the withdrawal of a plea, it is not a
‘collateral challenge to the validity of a conviction or sentence.’ ” (Emphasis sic.) Id.,
citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). (Other citations
omitted.) Accordingly, the Supreme Court of Ohio concluded that plea withdrawal
motions and petitions for postconviction relief are distinct remedies that exist
independently. Bush at ¶ 14.
{¶ 12} In this case, it is clear that the petition filed by Aultman is not a Crim.R. 32.1
motion to withdraw guilty plea, as Aultman did not seek to withdraw his guilty plea in the
petition, nor did he request relief under Crim.R. 32.1. Instead, Aultman specifically
requested relief under R.C. 2953.21 for alleged constitutional violations, a request that
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was contained in a filing captioned as a “Petition for Post Conviction Relief.”
Furthermore, Aultman indicated in both his petition and his appellate brief that he was
only challenging his sentence, not his conviction, and that he was “not asking to be
absolved from his guilt.” Accordingly, it is clear that Crim.R. 32.1 does not apply.
Aultman’s attempt to employ Crim.R. 32.1 in this appeal is nothing more than an endeavor
to bypass the law that governs petitions for postconviction relief.
{¶ 13} That said, we now turn to the law governing petitions for postconviction
relief. “Petitions for postconviction relief are governed by R.C. 2953.21 through R.C.
2953.23. Under these statutes, any defendant who has been convicted of a criminal
offense and who claims to have experienced a denial or infringement of his or her
constitutional rights may petition the trial court to vacate or set aside the judgment and
sentence.” State v. Johnson, 2d Dist. Montgomery No. 24775, 2012-Ohio-2542, ¶ 10,
citing R.C. 2953.21(A).
{¶ 14} R.C. 2953.21(A)(2) governs the time limitation for filing petitions for
postconviction relief, and provides, in pertinent part:
(2) * * * 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 three
hundred sixty-five days after the expiration of the time for filing the appeal.
{¶ 15} “[T]he trial court lacks jurisdiction to consider an untimely petition for post-
conviction relief, unless the untimeliness is excused under R.C. § 2953.23(A).”
(Citations omitted.) Johnson at ¶ 11. R.C. 2953.23(A) “ ‘confers jurisdiction to
adjudicate an untimely postconviction petition when the petitioner shows that he was
unavoidably prevented from discovering the facts upon which he must rely to present his
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claim for relief, or that a new federal or state right that applies retroactively to the petitioner
was recognized by the United States Supreme Court subsequent to the period prescribed
in R.C. 2953.21(A)(2), and the petition asserts a claim based upon that right.’ ” State v.
Singleton, 2d Dist. Montgomery No. 26763, 2016-Ohio-611, ¶ 15, quoting State v.
Harden, 2d Dist. Montgomery No. 20803, 2005-Ohio-5580, ¶ 9, citing R.C.
2953.23(A)(1)(a).
{¶ 16} Specifically, R.C. 2953.23(A) provides the following:
(A) Whether a hearing is or is not held on a petition filed pursuant to section
2953.21 of the Revised Code, a court may not entertain a petition filed after
the expiration of the period prescribed in division (A) of that section or a
second petition or successive petitions for similar relief on behalf of a
petitioner unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(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 period prescribed in
division (A)(2) of section 2953.21 of the Revised Code or to the filing of an
earlier petition, 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,
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if the 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.
(2) The petitioner was convicted of a felony, the petitioner is an offender for
whom DNA testing was performed under sections 2953.71 to 2953.81 of
the Revised Code or under former section 2953.82 of the Revised Code
and analyzed in the context of and upon consideration of all available
admissible evidence related to the inmate's case as described in division
(D) of section 2953.74 of the Revised Code, and the results of the DNA
testing establish, by clear and convincing evidence, actual innocence of that
felony offense or, if the person was sentenced to death, establish, by clear
and convincing evidence, actual innocence of the aggravating circumstance
or circumstances the person was found guilty of committing and that is or
are the basis of that sentence of death.
R.C. 2953.23(A)(1)-(2).
{¶ 17} Aultman concedes, and we agree, that his petition is untimely, as it was filed
almost three years after the expiration of the time for filing a direct appeal. Therefore,
the trial court lacks jurisdiction to consider the petition unless one of the exceptions in
R.C. 2953.23(A) applies. After a thorough review of the record, we agree with the trial
court that none of the exceptions apply to the case at bar.
{¶ 18} For instance, the exception in R.C. 2953.23(A)(1) does not apply because
Aultman was not unavoidably prevented from discovering the facts upon which his petition
relied, and the claims in Aultman’s petition are not based on a new, retroactive federal or
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state right recognized by the United States Supreme Court. See R.C. 2953.23(A)(1)(a).
{¶ 19} We note that “ ‘[t]he phrase “unavoidably prevented” means that a
defendant was unaware of those facts and was unable to learn of them through
reasonable diligence.’ ” State v. Rainey, 2d Dist. Montgomery No. 23851, 2010-Ohio-
5162, ¶ 13, quoting State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-Ohio-798, ¶ 19.
Here, Aultman was clearly aware of the questions he was asked by the trial court at his
sentencing hearing and of his trial counsel’s failure to object to the questions concerning
his failure to seek counseling. Aultman does not argue otherwise, but instead claims that
his status as a convicted sex offender unavoidably prevented him from being able to retain
a psychologist who was willing to evaluate him (presumably to determine why he never
sought counseling). This, however, does not meet the standard in R.C. 2953.23(A)(1)(a)
since Aultman was not unavoidably prevented from discovering the facts upon which his
due process and ineffective assistance claims were based.
{¶ 20} In addition, Aultman’s petition only challenges his sentence, and the plain
language of R.C. 2953.23(A)(1)(b) precludes a trial court from entertaining an untimely
postconviction challenge to a sentence brought by a noncapital petitioner. State v.
Holloman, 10th Dist. Franklin No. 07AP-875, 2008-Ohio-2650, ¶ 14; State v. Hach, 9th
Dist. Summit No. 27102, 2014-Ohio-682, ¶ 8 (“ ‘R.C. 2953.23(A)(1)(b) does not extend to
sentencing errors, except for those occurring within the capital punishment context’ ”),
quoting State v. Barkley, 9th Dist. Summit No. 22351, 2005-Ohio-1268, ¶ 11. Since
Aultman is a noncapital petitioner, R.C. 2953.23(A)(1)(b) does not provide appellant a
vehicle to challenge his sentence when his petition is untimely.
{¶ 21} The exception for untimely petitions in R.C. 2953.23(A)(2) also does not
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apply to Aultman as no postconviction DNA testing results were performed establishing
his innocence by clear and convincing evidence. Again, Aultman does not claim he is
innocent of the charges in this case, but only takes issue with his sentence.
{¶ 22} Because Aultman’s untimely petition for postconviction relief does not fall
under any of the exceptions in R.C. 2953.23(A), we conclude that the trial court was
without jurisdiction to consider his petition and that the court correctly dismissed
Aultman’s petition on that basis.
{¶ 23} Aultman’s sole assignment of error is overruled.
Conclusion
{¶ 24} Having overruled Aultman’s sole assignment of error, the judgment of the
trial court is affirmed.
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DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Jane A. Napier
George A. Katchmer
Hon. Nick A. Selvaggio
State v. Aultman
Combined Opinion