State v. Howald, 2008 Ohio 5404 (Ohio App. 10/20/2008), No. 14-08-23.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: Shaw
• Citation: 2008 Ohio 5404
• Parties: State of Ohio, Plaintiff-Appellee, v. Jacob Boyd Howald, Defendant-Appellant.
• Decision Date: 20 October 2008
• Docket Number: No. 14-08-23.

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2008 Ohio 5404 State of Ohio, Plaintiff-Appellee,
v.
Jacob Boyd Howald, Defendant-Appellant. No. 14-08-23. Court of Appeals of Ohio, Third District, Union County. October 20, 2008.

Appeal from Common Pleas Court.

Judgment affirmed.

Alison Boggs, Attorney at Law, Reg. #0055841, 240 West Fifth Street, Suite A, Marysville, OH 43040, for Appellant.

David W. Phillips, Prosecuting Attorney, Reg. #0019966, Terry L. Hord, Reg. #0025979, 221 West Fifth Street, Third Floor 333, Marysville, OH 43040, for Appellee.

OPINION

SHAW, P.J.

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{¶1} Although originally placed on our accelerated calendar, we have elected, pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

{¶2} Defendant-Appellant Jacob B. Howald ("Howald") appeals from the May 23, 2008 Journal Entry of the Court of Common Pleas, Union County, Ohio overruling his petition for post-conviction relief.

{¶3} This matter stems from Howald's conviction for Burglary, a violation of R.C. 2911.12(A)(2), a felony of the second degree; Theft from an Elderly Person, a violation of R.C. 2913.02(A)(1), (B)(3), a felony of the fourth degree; and Receiving Stolen Property, a violation of R.C. 2913.51(A), (C), a felony of the fifth degree. Proceeding immediately to sentencing, the trial court determined that the charges of theft from an elderly person and receiving stolen property were allied offenses of similar import, and the state elected to retain the charge of theft from an elderly person. The court sentenced Howald to an aggregate sentence of seven years in prison; six years for burglary consecutive to twelve months for theft from an elderly person.

{¶4} This Court affirmed Howald's convictions in State v. Howald, 3rd Dist. No. 14-07-25, 2007-Ohio-6152.

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{¶5} On May 20, 2008 Howald filed a petition for post-conviction relief. In his petition, Howald argued that he was denied effective assistance of counsel and that the indictment against him was faulty. The trial court overruled Howald's petition on May 23, 2008.

{¶6} Howald now appeals, asserting one assignment of error.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR POST CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING.

{¶7} In his sole assignment of error, Howald argues that the trial court erred by failing to conduct an evidentiary hearing on his petition for post-conviction relief.

{¶8} A petitioner who seeks to challenge his conviction through a petition for post conviction relief is not automatically entitled to a hearing. State v. Jackson (1980), 64 Ohio St.2d 107, 110, 413 N.E.2d 819. The test is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits, and the files and records in the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251, 575 N.E.2d 466 citing Jackson, supra.

{¶9} Further, "[w]here a petition for post conviction remedy under R.C. 2953.21 alleges grounds for relief, and the record of the original criminal

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prosecution does not fully rebut the allegations, the petitioner is entitled to an evidentiary hearing in which he is provided an opportunity to prove his allegations." State v. Bays (Jan. 30, 1998), 2nd Dist. No. 96-CA-118 citing State v. Williams (1966), 8 Ohio App.2d 135, 136, 220 N.E.2d 837.

{¶10} However, if the court determines that there are no substantive grounds for relief, it may dismiss the petition without an evidentiary hearing. State v. Smith, 3rd Dist. No. 1-04-50, 2004-Ohio-6190 citing State v. Calhoun (1999), 86 Ohio St.3d 279, 282-83, 714 N.E.2d 905, 1999-Ohio-102; State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169. "Pursuant to R.C. 2953.21(C), a trial court properly denies a defendant's petition for post conviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files and the records do not demonstrate that petitioner set forth sufficient operative facts to establish substantive grounds for relief." State v. Battle, 10th Dist. No. 06AP-863, 2007-Ohio-1845 citing Calhoun, 86 Ohio St.3d 279 at 291.

{¶11} Additionally, in reviewing the documentary evidence in support of the petition, the trial court may judge their credibility in determining whether to accept the affidavits as true statements of fact for the purpose of showing substantive grounds for relief. See Calhoun, 86 Ohio St.3d at 284, State v. Bays, supra, State v. Strutton, 62 Ohio App.3d at 252. "Unlike the summary judgment

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procedure in civil cases, in post conviction relief proceedings, the trial court has presumably been presented with evidence to support the original entry of conviction..." Id. Therefore, under appropriate circumstances in post conviction relief proceedings, the trial court may deem affidavit testimony to lack credibility without first observing or examining the affiant. Id. That conclusion is supported by common sense, the interests of eliminating delay and unnecessary expense, and furthering the expeditious administration of justice. Id. citing Civ.R. 1(B), (C); Cole, 2 Ohio St.3d at 114. However, if the trial court dismisses the petition for post conviction relief, it shall make and file findings of fact and conclusions of law with respect to such dismissal. R.C. 2151.21(C).

{¶12} In reviewing whether the trial court erred in denying a petitioner's motion for post conviction relief without a hearing, the appellate court applies an abuse of discretion standard. State v. Campbell, 10th Dist. No. 03AP-147, 2003-Ohio-6305 citing Calhoun, 86 Ohio St.3d at 284. An abuse of discretion constitutes more than an error of law or judgment and implies that the trial court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. When applying the abuse of discretion standard, a reviewing court may not simply substitute its judgment for that of the trial court. Id.

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{¶13} As an initial matter, we note that Howald's petition for post-conviction relief is untimely. Timeliness of a petition for post-conviction relief is governed by R.C. 2953.21(A)(2) which provides in pertinent part:

Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty 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 or ... (emphasis added)

{¶14} This Court has previously recognized that a trial court is without jurisdiction to consider a petition for post-conviction relief that is filed outside of the statutory 180 day time limit. State v. Osborn, 3rd Dist. No 9-06-44, 2007-Ohio-1629. Furthermore, the Ohio Supreme Court held in State ex rel Kimbrough v. Greene (2002), 98 Ohio St.3d 116, 781 N.E.2d 155, 2002-Ohio-7042, at ¶ 6,...