[Cite as State v. Millender,
2012-Ohio-2331.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vsCase No. 11 CA 63
CHARLES MILLENDER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 02 CR 268
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 22, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS
PROSECUTING ATTORNEY Box 40
JOCELYN S. KELLY West Jefferson, Ohio 43162
ASSISTANT PROSECUTOR
239 West Main Street, Suite 101
Lancaster, Ohio 43130
Fairfield County, Case No. 11 CA 63 2
Wise, J.
{¶1} Appellant Charles F. Millender appeals from the denial of his petition for
post-conviction relief in the Court of Common Pleas, Fairfield County. Appellee is the
State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On October 21, 2002, appellant pled guilty to one count of trafficking in
crack cocaine, R.C. 2925.03(A) and (C)(4)(f), with specifications, and one count of
trafficking in crack cocaine, R.C. 2925.03(A) and (C)(4)(g), with specifications. These
were counts two and three of a three-count indictment, the first count of which was
dismissed.
{¶3} The trial court conducted a sentencing hearing on December 5, 2002. On
count two, appellant was sentenced to a prison term of five years. On count three,
appellant was sentenced to a prison term of ten years. The two terms were ordered to
be served consecutively. The court further ordered, inter alia, that appellant pay a fine
of $10,000 on each count and that appellant forfeit his interest in a 1999 Chrysler
automobile and $14,030 in U.S. currency.
{¶4} Appellant appealed from his conviction and sentence; however, on March
26, 2003, this Court affirmed the decision of the Fairfield County Court of Common
Pleas. See State v. Millender, Fairfield App. No. 03CA03, 2003-Ohio-1691. The Ohio
Supreme Court subsequently declined to hear the appeal. State v. Millender,
100 Ohio
St.3d 1544,
2003-Ohio-6879.
{¶5} In the meantime, appellant filed a motion seeking to “dismiss mandatory
fines imposed” and to have returned to him monies seized for said fines. On
September 12, 2003, the trial court issued a judgment entry overruling appellant's
Fairfield County, Case No. 11 CA 63 3
motion regarding his fines. Appellant thereupon appealed to this Court; on February
24, 2004, we affirmed the trial court’s decision to deny his motion. See State v.
Millender, Fairfield App.No. 03 CA78, 2004-Ohio-871.
{¶6} On September 15, 2011, appellant filed with the trial court a petition for
post-conviction relief and request for resentencing. The State filed a memorandum
contra on October 19, 2011. Appellant filed a rebuttal memorandum on October 28,
2011.
{¶7} On November 2, 2011, the trial court issued a judgment entry denying
appellant’s motion for post-conviction relief.
{¶8} On November 30, 2011, appellant filed a notice of appeal. He herein
raises the following sole Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED IN DENYING PETITIONER-APPELLANT
(SIC) POST-CONVICTION RELIEF IN THE FORM OF RESENTENCING TO REDUCED
AND CONCURRENT TERMS IN VIOLATION OF OHIO LAW AND THE STATE AND
FEDERAL CONSTITUTIONS.”
I.
{¶10} In his sole Assignment of Error, appellant contends the trial court erred in
denying his petition for post-conviction relief to seek resentencing. We disagree.
{¶11} The pertinent jurisdictional time requirements for a postconviction petition
are set forth in R.C. 2953.21(A)(2) as follows: “… 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 adjudication ….” In order for a court to recognize an untimely
Fairfield County, Case No. 11 CA 63 4
postconviction petition pursuant to R.C. 2953.23(A)(1), both of the following
requirements must apply:
{¶12} “(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.
{¶13} “(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 ….”
{¶14} A court has no jurisdiction to hear an untimely petition for postconviction
relief unless the movant meets the requirements in R.C. 2953.23(A). State v.
Demastry, Fairfield App. No. 05CA14, 2005-Ohio-4962, ¶ 15. In the case sub judice,
appellant’s direct appeal from his convictions and sentence was completed in 2003.
Clearly, his petition for post-conviction relief of September 15, 2011 is facially untimely.
Appellant, in his petition, seemed to propose that his post-conviction claim was
properly before the trial court under the second requirement of R.C. 2953.23(A)(1)(a),
because it was premised on State v. Foster,
109 Ohio St.3d 1,
845 N.E.2d 470, 2006-
Ohio-856. In Foster, the Ohio Supreme Court declared portions of R.C. 2929.14, R.C.
2929.19 and R.C. 2929.41 unconstitutional under Apprendi v. New Jersey (2000),
530
U.S. 466,
120 S.Ct. 2348,
147 L.Ed.2d 435, and Blakely v. Washington (2004),
542
U.S. 296,
124 S.Ct. 2531,
159 L.Ed.2d 403.
Fairfield County, Case No. 11 CA 63 5
{¶15} We thus interpret appellant’s reliance on Foster as a means of invoking
the Apprendi and Blakely decisions from the United States Supreme Court as both the
procedural and meritorious grounds, under R.C. 2953.23(A)(1), for his untimely post-
conviction petition. However, this Court has previously found Foster-based arguments
to be inapplicable where a case is postured before an appellate court as an appeal
from a denial of a petition for postconviction relief. See State v. Bunting, Stark App.No.
2007CA00028, 2007-Ohio-4254, ¶ 14, citing State v. Williams, Franklin App.No. 05AP-
339,
2006-Ohio-2197, ¶ 28, citing State v. Myers, Franklin App. No. 05AP-228, 2005-
Ohio-5998, ¶ 38. Cf., also, State v. Ferguson, Tuscarawas App.No. 2005 AP 09 0066,
2006-Ohio-2263, ¶ 15. Accordingly, we find appellant’s attempt to obtain resentencing
under Foster via post-conviction relief under these circumstances was properly denied
by the trial court.
{¶16} Appellant’s sole Assignment of Error is overruled.
{¶17} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Fairfield County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
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___________________________________
___________________________________
JUDGES
JWW/d 0507
Fairfield County, Case No. 11 CA 63 6
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHARLES MILLENDER :
:
Defendant-Appellant : Case No. 11 CA 63
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Fairfield County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES
