[Cite as State v. Jackson, 2017-Ohio-7985.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-17-1084
Appellee Trial Court No. CR0200902473
v.
Michael L. Jackson DECISION AND JUDGMENT
Appellant Decided: September 29, 2017
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Michael Jackson, pro se.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Michael L. Jackson, pro se, appeals the March 17,
2017 judgment of the Lucas County Court of Common Pleas which denied his petition
for postconviction relief. For the reasons below, we affirm.
{¶ 2} On June 1, 2010, following no contest pleas to possession of crack cocaine
with a major drug offender specification and aggravated drug trafficking, appellant was
sentenced to 14 years of imprisonment with ten years mandatory. On direct appeal, this
court affirmed appellant’s convictions and sentence. State v. Jackson, 6th Dist. Lucas
No. L-10-1227, 2011-Ohio-494.
{¶ 3} On March 2, 2017, appellant filed a petition for postconviction relief arguing
that the Supreme Court of Ohio’s decision in State v. Gonzales, Slip Opinion No. 2016-
Ohio-8319 (Gonzales I), necessitated that his conviction be vacated and that the state be
required to prove the weight of the crack cocaine, excluding any fillers. On March 14,
2017, appellant filed a second or “supplement” to his petition arguing the application
R.C. 2929.14, as amended by H.B. 86, which removed the distinction in criminal
penalties between crack cocaine and powdered cocaine. Appellant requested an
evidentiary hearing.
{¶ 4} The state opposed the petition noting that the Supreme Court of Ohio had
granted reconsideration of the decision and, upon reconsideration, held that the offense
level for possession of cocaine is determined by total weight of the drug, including any
fillers. State v. Gonzales, Slip Opinion No. 2017-Ohio-777 (“Gonzales II”). The state
further argued that the petition was untimely.
{¶ 5} On March 17, 2017, the trial court summarily denied the petition. This
appeal followed with appellant raising the following assignment of error:
2.
Assignment of Error No. 1: The appellant’s sentence was not
knowingly, intelligently, and voluntarily made, thereby, contrary to law in
violation of the due process and Article I, Section 16 of the Ohio
Constitution.
{¶ 6} In his sole assignment of error, appellant contends that that the Supreme
Court of Ohio should not have reconsidered its decision in Gonzales I and that, based on
that decision, his plea was not knowing and voluntary. Appellant quotes extensively
from Gonzales II’s dissenting opinions in making the argument that the state’s motion for
reconsideration failed to raise an obvious error and was simply an attempt to get a second
“bite at the apple.”
{¶ 7} We first note that “a trial court’s decision granting or denying a
postconviction petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse
of discretion.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶
58. Further, petitions for postconviction relief are to be filed within 365 days after the
date on which the trial transcript is filed in the court of appeals unless the time limit is
excused. R.C. 2953.21(A)(2).1 The filing time requirement is jurisdictional, and if a
petition has been untimely filed, the trial court cannot consider the substantive merits of
the petition and must summarily dismiss it without addressing the merits of the petition.
1
Prior R.C. 2953.21(A)(2), effective July 6, 2010, provided a 180-day limit for the filing
of a postconviction petition. Appellant’s petition is untimely under either version.
3.
State v. Flower, 7th Dist. Mahoning No. 14 MA 148, 2015-Ohio-2335, ¶ 12, citing State
v. Beaver, 131 Ohio App.3d 458, 461, 722 N.E.2d 1046 (11th Dist.1998).
{¶ 8} R.C. 2953.23(A) provides an exception to the time limit based upon whether
appellant was “unavoidably prevented” from discovering facts upon which he based his
petition or that the United States Supreme Court has recognized a new, retroactive right
and, but for the constitutional error at trial, no “reasonable factfinder” would have
convicted appellant.
{¶ 9} Based on the Supreme Court of Ohio’s decision in Gonzales II (of which the
dissents have no precedential value), and appellant’s failure to provide any other basis for
relief or explanation for the late filing of the petition, we must find that the trial court did
not abuse its discretion when it denied appellant’s petition for postconviction relief.
Appellant’s assignment of error is not well-taken.
{¶ 10} On consideration whereof, we find that appellant was not deprived of a fair
proceeding and the judgment of the Lucas County Court of Common Pleas is affirmed.
Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment Affirmed.
4.
State of Ohio
v. Michael L. Jackson
L-17-1084
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
James D. Jensen, P.J. JUDGE
CONCUR.
____________________________
JUDGE
5.
State v. Jackson
Combined Opinion