[Cite as State v. Hicks,
2012-Ohio-3985.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. CT2012-0017
JOSEPH A. HICKS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2010-0170
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 21, 2012
APPEARANCES:
For Appellant: For Appellee:
JOSEPH A. HICKS, PRO SE D. MICHAEL HADDOX
Allen Correctional Institution MUSKINGUM COUNTY PROSECUTOR
Attention C-Unit
2338 North West Street RON WELCH
Lima, OH 45801 27 N. Fifth Street, Suite 201
Zanesville, OH 43701
Delaney, P.J.
{¶1} Defendant-Appellant Joseph A. Hicks appeals the February 13, 2012
judgment entry of the Muskingum County Court of Common Pleas denying Hicks’s
Petition for Post Conviction Relief. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} On August 11, 2010, Hicks snatched the purse off the arm of an elderly
woman in the parking lot of a local restaurant. Hicks was indicted by the Muskingum
County Grand Jury on August 18, 2010 for one count of robbery in violation of R.C.
2911.02(A)(2), with a repeat violent offender specification under R.C. 2941.149; one
count of theft in violation of R.C. 2913.02(A)(1); and one count of theft in violation of
R.C. 2913.02(A)(1).
{¶3} Hicks entered a guilty plea on November 1, 2010 to one count of robbery
in violation of R.C. 2911.02(A)(2), a second degree felony; one count of theft in
violation of R.C. 2913.02(A)(1), a fourth degree of felony; and one count of theft in
violation of R.C. 2913.02(A)(1), a fifth degree of felony. The trial court informed Hicks
he was subject to mandatory post release control for three years.
{¶4} The trial court sentenced Hicks by judgment entry on December 1, 2010.
Pursuant to the plea negotiations, the State asked leave to nolle the repeat violent
offender specification to Count One of the indictment. The trial court granted the State
leave. The trial court sentenced Hicks to five years in prison on Count One, one year
in prison on Count Two, and one year in prison on Count Three. The terms were
ordered to be served concurrently. The trial court further ordered that because Hicks
was currently on postrelease control for a prior robbery conviction, the trial court
terminated Hicks’s postrelease control and reimposed the remaining twenty-three
months in prison to be served consecutively to the five-year prison sentence in the
present case.
{¶5} Hicks filed a Notice of Appeal of the sentencing entry on October 12,
2011. Hicks filed a Motion for Leave to File a Delayed Appeal. This Court denied said
motion on November 28, 2011.
{¶6} On February 6, 2012, Hicks filed a Petition to Vacate Judgment of
Conviction or Sentence with the trial court. The trial court denied the petition without a
hearing on February 13, 2012.
{¶7} It is from this decision Hicks now appeals.
ASSIGNMENTS OF ERROR
{¶8} Hicks raises eleven Assignments of Error:
{¶9} “I. THE APPELLANT HAD 23 MONTHS ADDED TO HIS PRISON
SENTENCE UNLAWFULLY.
{¶10} “II. THE POST RELEASE CONTROL PORTION OF THE APPELANT’S
[SIC] SENTENCE HAS BEEN IMPOSED CONTRARY TO LAW.
{¶11} “III. COUNSEL PROVIDED INEFFECTIVE ASSISTANCE FOR FAILING
TO ASSURE THAT TREATMENT FOR SUBSTANCE ABUSE BE INCLUDED IN THE
RESOLUTION OF THE CASE.
{¶12} “IV. COSTS HAVE BEEN IMPOSED AGAINST THE APPELLANT
UNLAWFULLY.
{¶13} “V. THE AMOUNT OF RESTITUTION ASSESSED AGAINST THE
APPELLANT IS ARBITRARY, AND HAS BEEN IMPOSED CONTRARY TO LAW.
{¶14} “VI. THE FIRST COUNT IN THE INDICTMENT IS FATALLY
DEFECTIVE.
{¶15} “VII. THE ‘REPEAT VIOLENT OFFENDER’ SPECIFICATION IN THE
INDICTMENT IS CONTRARY TO LAW.
{¶16} “VIII. THE SECOND COUNT IN THE INDICTMENT IS FATALLY
DEFECTIVE.
{¶17} “IX. THE THIRD COUNT IN THE INDICTMENT IS FATALLY
DEFECTIVE.
{¶18} “X. COUNSEL PROVIDED INEFFECTIVE ASSISTANCE FOR
ALLOWING THE APPELLANT TO BE SUBJECTED TO REPEATED
INTERROGATIONS BY THE POLICE WITHOUT COUNSEL’S PRESENCE OR
ADVICE.
{¶19} “XI. THE APPELLANT RECEIVED ERRONEOUS INFORMATION
REGARDING JUDICIAL RELEASE THAT WAS A SIGNIFICANT FACTOR IN HIS
DECISION TO CHANGE HIS PLEA FROM ‘NOT GUILTY’ TO ‘GUILTY’ AND ENTER
INTO A PLEA AGREEMENT WITH THE STATE.”
ANALYSIS
{¶20} Before we address Hicks’s eleven Assignments of Error, we first address
the timeliness of his petition for post conviction relief.
{¶21} Hicks was not permitted to file a delayed direct appeal of his conviction
and sentence. Hicks filed a petition for post conviction relief, which the trial court denied
without a hearing.
{¶22} “A petition for post conviction relief is a means to reach constitutional
issues that would otherwise be impossible to reach because the evidence supporting
those issues is not contained in the record of the petitioner's criminal conviction.”
State v. Perry, 5th Dist. No.2010CA00185, 2011–Ohio–274, ¶ 12, citing State v.
Murphy, 10th Dist. No. 00AP–233, 2000 WL 1877526 (Dec. 26, 2000). “Although
designed to address claimed constitutional violations, the post-conviction relief
process is a civil collateral attack on a criminal judgment, not an appeal of that
judgment.”
Id., citing State v. Calhoun,
86 Ohio St.3d 279, 281, 1999–Ohio–102,
714
N.E.2d 905; State v. Steffen,
70 Ohio St.3d 399, 410,
693 N.E.2d 67 (1994). “A
petition for post-conviction relief, thus, does not provide a petitioner a second
opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to
an evidentiary hearing on the petition.”
Id., citing State v. Jackson,
64 Ohio St.2d 107,
110,
413 N.E.2d 819 (1980); State v. Lewis, 5th Dist. No. 2007CA00358, 2008–Ohio–
3113 at ¶ 8. A court need not issue findings of fact and conclusions of law when it
dismisses an untimely petition or successive petitions for post conviction relief. State
ex rel. Kimbrough v. Greene,
98 Ohio St.3d 116, 2002–Ohio–7042,
781 N.E.2d 155;
State ex rel. Fuller v. Sutula,
86 Ohio St.3d 301,
714 N.E.2d 924 (1999).
{¶23} R.C. 2953.21(A)(2) provides that if no direct appeal was taken, a petition
for post conviction relief shall be filed no later than 180 days after the date on which the
time for filing an appeal expired. Hicks’s petition, filed nearly one year after the time for
appeal expired, is clearly untimely under this statute. However, pursuant to R.C.
2953.23(A), the court may consider an untimely filed petition:
(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, 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.
As used in this division, “actual innocence” has the same meaning as in
division (A)(1)(b) of section 2953.21 of the Revised Code, and “former
section 2953.82 of the Revised Code” has the same meaning as in
division (A)(1)(c) of section 2953.21 of the Revised Code.
{¶24} Hicks acknowledges his petition for post conviction relief is untimely. He
states that due to the uncooperative actions of his trial counsel, Hicks only recently
received the contents of his file. Hicks requested and received copies of the
indictment and his sentencing entry from the Clerk of Courts in preparation of his
petition. A review of Hicks’ petition shows he argues ineffective assistance of counsel,
an improper sentence of an additional 23 months, improper imposition of postrelease
control, incorrect amount of restitution, improper imposition of court costs due to his
indigence, errors in the indictment, improper police questioning, and the failure of the
trial court to grant him judicial release.
{¶25} Upon our review of the record, we find the issues raised by Hicks were
discoverable to Hicks prior to entering his pleas of guilty in this case. A review of the
“Plea of Guilty”, signed by Hicks and entered on November 1, 2010, shows the issues
that Hicks argues in his petition as being newly discovered were actually outlined
within the plea agreement.
{¶26} Further, Hicks has not provided this Court with a transcript of the change
of plea and sentencing hearings. In Knapp v. Edwards Laboratories, 61 Ohio St.2d
197, 199,
400 N.E.2d 384 (1980), the Supreme Court of Ohio held the following: “[t]he
duty to provide a transcript for appellate review falls upon the appellant. This is
necessarily so because an appellant bears the burden of showing error by reference
to matters in the record. See State v. Skaggs (1978),
53 Ohio St.2d 162,
372 N.E.2d
1355 (1978). Without a transcript of the proceedings, Hicks cannot demonstrate any
error or irregularity in connection with the trial court's decision.
Knapp, supra.
{¶27} Hicks finally argues his counsel provided ineffective assistance. Our
standard of review for ineffective assistance claims is set forth in Strickland v.
Washington, 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). Ohio adopted this
standard in the case of State v. Bradley,
42 Ohio St.3d 136,
538 N.E.2d 373 (1989).
These cases require a two-pronged analysis in reviewing a claim for ineffective
assistance of counsel. First, we must determine whether counsel's assistance was
ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his essential duties to the client.
If we find ineffective assistance of counsel, we must then determine whether or not the
defense was actually prejudiced by counsel's ineffectiveness such that the reliability of
the outcome of the trial is suspect. This requires a showing that there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would
have been different.
Id.
{¶28} Based on Hicks’ arguments, we cannot find there was ineffective
assistance of counsel or that the outcome of Hicks’s sentencing would have been
different.
{¶29} Accordingly, Hicks’s eleven Assignments of Error are overruled.
CONCLUSION
{¶30} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, P.J.
Farmer, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. CT2012-0017
JOSEPH A. HICKS :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Muskingum County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
