State v. Smith, 16415
| Decision Date | 05 December 1997 |
| Docket Number | No. 16415,16415 |
| Citation | 123 Ohio App.3d 48,702 N.E.2d 1245 |
| Parties | The STATE of Ohio, Appellee, v. SMITH, Appellant. |
| Court | Ohio Court of Appeals |
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Karen L. Sollars, Assistant Prosecuting Attorney, Appellate Division, Dayton, for appellee.
Michael L. Smith, Lima, appellant, pro se.
The defendant-appellant, Michael L. Smith, pleaded not guilty by reason of insanity to charges of attempted murder, aggravated burglary, tampering with evidence, and carrying a concealed weapon.
A jury found the defendant guilty of all four charges, and he was sentenced to consecutive terms of incarceration.
We affirmed his conviction on April 26, 1995 in case No. 14442. The only issue in the appeal was whether the jury's rejection of the defendant's insanity defense was contrary to the manifest weight of the evidence.
The record reflects the fact that on October 1, 1996 the defendant's pro se petition for postconviction relief was filed in the court that imposed sentence. The state moved to dismiss the petition because it was not timely filed.
R.C. 2953.21 was amended effective September 21, 1995 to require that post-conviction petitions be filed within one hundred eighty days after the expiration of the time for filing an appeal, if no appeal is taken, or within one hundred eighty days of the filing of the transcript, if an appeal is taken.
The same Senate Bill that amended R.C. 2953.21 also provided that a person who seeks postconviction relief in a case in which the sentence was imposed prior to September 21, 1995, may file in compliance with the new time requirements "or within one year from the effective date of this act, whichever is later." Am.Sub.S.B. No. 4, Section 3, 146 Ohio Laws, Part IV, 7825.
The trial court found that the petition was not filed within one year of September 21, 1995, the effective date of the act. The defendant has appealed from the order sustaining the state's motion to dismiss the complaint. There is one assignment of error:
"The trial court committed error prejudicial to the defendant-appellant by dismissing the petition for post-conviction relief as untimely filed when in fact said petition was timely filed."
The parties agree that the defendant's petition had to be filed within one year of September 21, 1995. R.C. 2953.21(A)(1) requires the petition to be filed "in the court that imposed sentence."
The defendant submitted evidence that he mailed his petition in the internal mail system at the Allen Correctional Institution on Friday, September 20, 1996.
The defendant contends that his petition was timely filed on September 20, 1996, when he turned it over to prison authorities for mailing. He has cited a case that supports his position. Houston v. Lack (1988), 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245.
The Supreme Court of Ohio discussed the Houston case in State ex rel. Tyler v. Alexander (1990), 52 Ohio St.3d 84, 555 N.E.2d 966.
State ex rel....
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