State v. Banks

2013 Ohio 4394

Opinion

[Cite as State v. Banks, 2013-Ohio-4394.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

DAVID E. BANKS

Defendant-Appellant

Appellate Case No. 25541

Trial Court Case No. 2010-CR-1284 2010-CR-2935/1

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 4th day of October, 2013.

...........

MATHIAS H. HECK, JR., by R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

DAVID E. BANKS, Inmate No. A610987, Chillicothe Correctional Institution, P.O. Box 5500, Chillicothe, Ohio 45601 Defendant-Appellant-Pro Se

............. 2

WELBAUM, J.

{¶ 1} Defendant-Appellant, David E. Banks, appeals pro se from a trial court decision

overruling his petition for post-conviction relief filed in Montgomery County Common Pleas

Court Case Nos. 2010 CR 01284 and 2010 CR 02935/01. The petition is based on a claim of

ineffective assistance of trial counsel. We conclude that the trial court correctly overruled

Banks’s petition, because the petition was untimely and it failed to set forth sufficient operative

facts to establish substantive grounds for relief.

{¶ 2} In a separate unassigned error, Banks contends that the trial court failed to sign

an unspecified judgment entry, and concludes that the entry was not a final appealable order.

We conclude that this argument has no merit, because all entries in Case Nos. 2010 CR 01284

and 2010 CR 02935/01 are signed.

{¶ 3} In an additional unassigned error, Banks argues that it was inappropriate for the

trial court to impose mandatory sentences for his two Burglary convictions. This argument has no

merit because mandatory sentences are permitted under R.C. 2929.13(F)(6). Accordingly, the

judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 4} David E. Banks was indicted by the Montgomery County Grand Jury in Case No.

2010 CR 01284, for one count of Burglary, a felony of the second degree, one count of

Obstructing Official Business, a felony of the fifth degree, and one count of Possession of

Criminal Tools, a felony of the fifth degree. He was subsequently indicted in Case No. 2010 CR 3

02935/01 for one count of Burglary, a felony of the second degree, one count of Receiving Stolen

Property, a felony of the fourth degree, one count of Possession of Criminal Tools, a felony of

the fifth degree, and one count of Escape. Banks entered guilty pleas to all charges except for

Escape, which was dismissed by the State.

{¶ 5} On July 8, 2011, the trial court sentenced Banks to serve an eight-year mandatory

prison term for each of his two Burglary offenses. He also received a 12-month prison sentence

for each of his four remaining offenses. All of the sentences were ordered to run concurrently;

therefore, Banks’s total prison sentence for both cases is eight years.

{¶ 6} Banks did not file a direct appeal from his conviction and sentence. Instead, he

filed a petition for post-conviction relief for both cases on July 2, 2012. In his petition, Banks

claims that he was denied effective assistance of trial counsel during plea negotiations. The trial

court overruled the petition without holding an evidentiary hearing. Banks appeals from the trial

court’s decision overruling his petition for post-conviction relief.

II. Did the Trial Court Err in Overruling Appellant’s

Motion for Post Conviction Relief?

{¶ 7} Banks’s sole assignment of error states as follows:

The Trial Court Erred in Overruling Appellant’s Motion for Post

Conviction Relief/Ineffective Assistant [sic] of Counsel.

{¶ 8} Under this assignment of error, Banks claims that the trial court erred in

overruling his petition for post-conviction relief, because he was denied effective assistance of

trial counsel. Specifically, he argues that his trial counsel failed to properly inform and advise 4

him during plea negotiations, and failed to investigate his mental health. Banks also claims that

the trial court failed to sign an unspecified judgment entry, and concludes that the entry is not a

final appealable order. In addition, he argues that mandatory sentences were not required for the

crimes in which he was convicted. We will first determine whether the trial court erred in

overruling the petition for post-conviction relief and then address Banks’s additional arguments.

{¶ 9} “Petitions for post-conviction relief are governed by R.C. 2953.21 through R.C.

2953.23. Under these statutes, any defendant who has been convicted of a criminal offense and

who claims to have experienced a denial or infringement of his or her constitutional rights may

petition the trial court to vacate or set aside the judgment and sentence. R.C. 2953.21(A).” State

v. Current, 2d Dist. Champaign No. 2012 CA 33, 2013-Ohio-1921, ¶ 14.

{¶ 10} In addressing a petition for post-conviction relief, “a trial court has a gatekeeping

role as to whether a defendant will even receive a hearing.” State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51. R.C. 2953.21(C) states in part:

Before granting a hearing on a petition * * * the court shall determine

whether there are substantive grounds for relief. In making such a determination,

the court shall consider, in addition to the petition, the supporting affidavits, and

the documentary evidence, all the files and records pertaining to the proceedings

against the petitioner, including, but not limited to, the indictment, the court's

journal entries, the journalized records of the clerk of the court, and the court

reporter's transcript.

{¶ 11} “[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 5

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. Calhoun, 86 Ohio

St.3d 279, 714 N.E.2d 905 (1999), paragraph two of the syllabus.

{¶ 12} We also note that there is a time limitation for filing petitions for post-conviction

relief. When a petitioner does not directly appeal from the judgment of conviction, the petition

“shall be filed no later than one hundred eighty days after the expiration of the time for filing the

appeal.” R.C. 2953.21(A)(2).

{¶ 13} “Trial courts lack jurisdiction to consider an untimely petition for

post-conviction relief, unless the untimeliness is excused under R.C. § 2953.23(A).” (Citations

omitted.) Current, 2d Dist. Champaign No. 2012 CA 33, 2013-Ohio-1921, at ¶ 16. Under this

statute, the 180-day time limitation may be excused only if the petitioner can show that: (1) he

was “unavoidably prevented from discovery of the facts upon which the petitioner must rely to

present the claim for relief”; or (2) “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.” R.C. 2953.23(A)(1)(a). If one of these conditions is met, the

petitioner then must show “by clear and convincing evidence that, but for constitutional error at

trial, no reasonable fact-finder would have found the petitioner guilty of the offense of which the

petitioner was convicted * * *.” R.C. 2953.23(A)(1)(b).

{¶ 14} In this case, Banks claims that he is entitled to post-conviction relief because his

trial counsel was ineffective. His claim is based solely on conclusory and self-serving

statements contained in his petition regarding his interactions with counsel. He did not

demonstrate through the record or additional documentary evidence that there are substantive 6

grounds for relief. Accordingly, the trial court properly denied the petition without holding an

evidentiary hearing.

{¶ 15} Banks’s petition is also untimely. He did not directly appeal his conviction;

therefore, he had 180 days after the expiration of time to file an appeal to file a petition. He was

convicted on July 8, 2011, and pursuant to App.R. 4, the expiration of time to file an appeal is 30

days thereafter, which is August 7, 2011. Therefore, the deadline to file his petition for

post-conviction relief was 180 days later, or February 3, 2012. Banks filed his petition on July

2, 2012, five months after the deadline.

{¶ 16} In addition to being untimely, Banks failed to demonstrate that either of the

exceptions in R.C. 2953.23(A)(1) apply in order to permit him to file his petition out of time.

He did not argue or submit any evidence showing that he was unavoidably prevented from

discovering the facts upon which his ineffective assistance of counsel claim is based. He also

did not argue the existence of a newly recognized law that retroactively applies to him. As a

result, there is no basis on which the trial court could have accepted Banks’s untimely petition.

For this reason, the trial court did not have jurisdiction to consider the petition and properly

dismissed it.

{¶ 17} Having found that the trial court did not err in overruling Banks’s petition for

post-conviction relief, we will now address his additional arguments which are: (1) the trial court

judge did not sign a judgment entry of conviction; and (2) the trial court incorrectly imposed

mandatory prison terms.

{¶ 18} We note that these arguments are unrelated to Banks’s sole assignment of error,

and should have been separately assigned as errors pursuant to App.R. 16(A)(3). Banks is 7

proceeding pro se; however, “[l]itigants who choose to proceed pro se are presumed to know the

law and correct procedure, and are held to the same standards as other litigants.” (Citation

omitted.) Yocum v. Means, 2d Dist. Dark No. 1576, 2002-Ohio-3803, ¶ 20. Despite the errors

in Banks’s brief, we will address the merits of his arguments.

{¶ 19} As for the first unassigned argument, regarding the trial judge’s alleged failure to

sign an entry, Banks does not specify what entry was unsigned. Furthermore, we have reviewed

the docket and confirmed that all entries were signed in Case Nos. 2010 CR 01284 and 2010 CR

02935/01. Accordingly, this argument has no merit.

{¶ 20} As for the second unassigned argument, Banks claims that none of the crimes for

which he was convicted carry the requirement of a mandatory prison sentence.

“R.C. 2929.13(F) addresses mandatory prison terms and lists offenses for which a sentencing

court is obligated to impose a prison term.” State v. Johnson, 116 Ohio St.3d 541,

2008-Ohio-69, 880 N.E.2d 896, ¶ 9. The statute lists 14 offenses or circumstances that require

the imposition of a mandatory term. Section (F)(6) of the statute allows for the imposition of a

mandatory prison term upon a conviction for a first or second degree felony that is not otherwise

set forth in R.C. 2929.13(F) “if the offender previously was convicted of or pleaded guilty to * *

* any first or second degree felony.”

{¶ 21} In this case, the trial court imposed mandatory prison sentences for the two

counts of Burglary, which are under sections (A)(1) and (A)(2) of R.C. 2911.12. Both of these

offenses are second degree felonies. R.C. 2911.12(D). Banks had been previously convicted of

a second degree felony offense in Case No. 2004 CR 01393.1 Accordingly, the trial court’s

1 “[T]he Supreme Court of Ohio has held that appellate courts may take judicial notice of findings in other Ohio cases.” State v. 8

imposition of a mandatory sentence was appropriate under R.C. 2929.13(F)(6), given the prior

second degree felony conviction.

III. Conclusion

{¶ 22} For the foregoing reasons, Banks’s sole assignment of error and additional

unassigned errors are overruled. The judgment of the trial court is affirmed.

.............

FAIN, P.J. and FROELICH, J., concur.

Copies mailed to:

Mathias H. Heck R. Lynn Nothstine David E. Banks Hon. Barbara P. Gorman

Raymond, 10th Dist. Franklin No. 08AP-78, 2008-Ohio-6814, ¶ 16, citing Morgan v. Cincinnati, 25 Ohio St.3d 285, 288, 496 N.E.2d 468 (1986); In re Adoption of Lassiter, 101 Ohio App.3d 367, 374, 655 N.E.2d 781 (2d Dist.1995); Szerlip v. Szerlip, 5th Dist. Knox No. 01 CA09, 2002 WL 1270874, *3 (May 15, 2002) (concluding that, in temporarily suspending appellant's parental rights, the court could take judicial notice of appellant's conviction in another case). (Other citations omitted.)