[Cite as State v. Eldridge, 2014-Ohio-2250.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA3584 : vs. : : DECISION AND JUDGMENT PETER D. ELDRIDGE, : ENTRY : Defendant-Appellant. : Released: 05/21/14 _____________________________________________________________ APPEARANCES:
Peter D. Eldridge, Chillicothe, Ohio, Pro Se Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court
decision denying Appellant’s petition for post-conviction relief. On appeal,
Appellant challenges the search leading to his initial arrest, contending that
the Fourth Amendment to the United States and Ohio Constitutions prohibit
police officers from making warrantless and nonconsensual entry into a
suspect’s home to make a felony arrest. Upon review, we conclude that
Appellant’s motion was untimely filed. The trial court lacked jurisdiction to
address the merits of the petition and should have dismissed for lack of Scioto App. No. 13CA3584 2
jurisdiction. In addition, Appellant’s arguments were barred by the doctrine
of res judicata. For these reasons, the judgment of the Scioto County
Common Pleas Court is reversed. The trial court’s judgment entry
overruling Appellant’s motion for resentencing is vacated. The petition for
post-conviction relief should be dismissed for lack of jurisdiction.
FACTS
{¶ 2} On July 20, 2011, Appellant, Peter Eldridge, pled no contest to
three counts of aggravated trafficking in drugs with two of the counts
alleging he committed the trafficking within the vicinity of a juvenile.
Appellant stipulated there was sufficient evidence of guilt and the Scioto
County Court of Common Pleas found him guilty of all three counts.
Appellant filed a direct appeal of the trial court’s denial of his motion to
suppress, arguing 1) the affidavit submitted in support of the request for a
search warrant was inadequate and failed to establish probable cause; and 2)
law enforcement officers' execution of the search warrant was unreasonable
because they violated the knock and announce rule contained within R.C.
2935.12(A). This Court issued a decision on August 10, 2012, which found
the affidavit was sufficient to establish probable cause and the officers did
not violate R.C. 2935.12(A), which governs forcible entry in making an
arrest and execution of a search warrant. State v. Eldridge, 4th Dist. Scioto Scioto App. No. 13CA3584 3
No. 11CA3441, 2012-Ohio-3747. Accordingly, we overruled Appellant’s
two assignments of error and affirmed the trial court's judgment entry
denying his motion to suppress. Id.
{¶ 3} Subsequently, on September 10, 2013, Appellant filed a motion
entitled “Defendant’s Motion for Resentencing Pursuant to Criminal Rule
47.” Appellant’s motion argued that he was entitled to be re-sentenced,
based upon claimed constitutional violations, namely that the search warrant
was not executed in a reasonable manner, and also that officers violated the
knock and announce rule in conducting a search of his residence. The trial
court treated Appellant’s motion as a petition for post-conviction relief and
denied it as untimely filed and barred by the doctrine of res judicata. It is
from the trial court’s October 22, 2013, judgment entry that Appellant now
brings his appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION, ARTICLE I, SECTION 14, PROHIBITS POLICE OFFICERS FROM MAKING WARRANTLESS AND NONE CONSENNAL ENTRY INTO A SUSPECT’S HOME TO MAKE A FELONY ARREST.” [SIC]
LEGAL ANALYSIS
{¶ 4} In his sole assignment of error, Appellant contends that the
fourth amendment to both the Ohio and United States Constitutions Scioto App. No. 13CA3584 4
prohibited police officers from making a warrantless and nonconsensual
entry in his home, which led to his arrest. The initial motion filed in the trial
court wherein Appellant raised this argument was titled “Defendant’s
Motion for Resentencing Pursuant to Criminal Rule 47.” In that motion,
Appellant sought an order resentencing him, based upon his claim that his
sentences were contrary to law. This argument seemed to be based upon his
contention that police officers violated the knock and announce rule in
conducting a search of his residence. Although Appellant’s motion was not
expressly titled as such, the trial court treated it as a petition for post-
conviction relief and denied it as being both untimely filed and barred by the
doctrine of res judicata. For the following reasons, we agree with the
decision of the trial court.
{¶ 5} Appellant commenced the instant proceedings on September
10, 2013, with the filing of his motion for resentencing. Appellant’s motion
raised constitutional challenges to his convictions and sentences. We
initially note that courts may generally “recast irregular motions into
whatever category necessary to identify and to establish the criteria by which
a motion should be evaluated.” State v. Sanders, 4th Dist. Pickaway No.
12CA4, 2013-Ohio-1326, ¶ 5; citing State v. Lett, 7th Dist. Mahoning No.
09MA131, 2010-Ohio-3167, ¶ 15; citing State v. Schlee, 117 Ohio St.3d Scioto App. No. 13CA3584 5
153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. As Appellant’s motion was
filed post-conviction and subsequent to his initial, direct appeal and because
it raised constitutional claims, we believe the trial court properly treated the
motion as a petition for post-conviction relief, brought pursuant to R.C.
2953.21.
{¶ 6} “[A] trial court's decision granting or denying a postconviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial court's finding on a
petition for postconviction relief that is supported by competent and credible
evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 58. The term ‘abuse of discretion’ connotes more than an error
of law or of judgment; it implies the court's attitude is unreasonable,
arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980). Reviewing Appellant’s motion as a petition for post-
conviction relief, we find the trial court properly denied the motion as both
untimely and barred by res judicata.
{¶ 7} Here, Appellant filed an initial, direct appeal of his underlying
conviction. Generally, an appellant must file his petition for post-conviction
relief within 180 days of the filing of the transcript in an appeal, or within
180 days of the expiration of the time for filing an appeal, if he filed no Scioto App. No. 13CA3584 6
appeal. R.C. 2953.21(A)(2). “The time limitation prescribed in R.C.
2953.21(A)(2) is jurisdictional, i.e., a trial court cannot entertain an untimely
petition unless one of the exceptions set forth in R.C. [2953.23(A) ] applies.”
State v. Davis, 4th Dist. Washington No. 10CA25, 2011-Ohio-1706, ¶ 9;
citing State v. Smith, 4th Dist. Washington No. 06CA65, 2007-Ohio-4730, ¶
11.
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[Cite as State v. Eldridge, 2014-Ohio-2250.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA3584 : vs. : : DECISION AND JUDGMENT PETER D. ELDRIDGE, : ENTRY : Defendant-Appellant. : Released: 05/21/14 _____________________________________________________________ APPEARANCES:
Peter D. Eldridge, Chillicothe, Ohio, Pro Se Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶ 1} This is an appeal from a Scioto County Common Pleas Court
decision denying Appellant’s petition for post-conviction relief. On appeal,
Appellant challenges the search leading to his initial arrest, contending that
the Fourth Amendment to the United States and Ohio Constitutions prohibit
police officers from making warrantless and nonconsensual entry into a
suspect’s home to make a felony arrest. Upon review, we conclude that
Appellant’s motion was untimely filed. The trial court lacked jurisdiction to
address the merits of the petition and should have dismissed for lack of Scioto App. No. 13CA3584 2
jurisdiction. In addition, Appellant’s arguments were barred by the doctrine
of res judicata. For these reasons, the judgment of the Scioto County
Common Pleas Court is reversed. The trial court’s judgment entry
overruling Appellant’s motion for resentencing is vacated. The petition for
post-conviction relief should be dismissed for lack of jurisdiction.
FACTS
{¶ 2} On July 20, 2011, Appellant, Peter Eldridge, pled no contest to
three counts of aggravated trafficking in drugs with two of the counts
alleging he committed the trafficking within the vicinity of a juvenile.
Appellant stipulated there was sufficient evidence of guilt and the Scioto
County Court of Common Pleas found him guilty of all three counts.
Appellant filed a direct appeal of the trial court’s denial of his motion to
suppress, arguing 1) the affidavit submitted in support of the request for a
search warrant was inadequate and failed to establish probable cause; and 2)
law enforcement officers' execution of the search warrant was unreasonable
because they violated the knock and announce rule contained within R.C.
2935.12(A). This Court issued a decision on August 10, 2012, which found
the affidavit was sufficient to establish probable cause and the officers did
not violate R.C. 2935.12(A), which governs forcible entry in making an
arrest and execution of a search warrant. State v. Eldridge, 4th Dist. Scioto Scioto App. No. 13CA3584 3
No. 11CA3441, 2012-Ohio-3747. Accordingly, we overruled Appellant’s
two assignments of error and affirmed the trial court's judgment entry
denying his motion to suppress. Id.
{¶ 3} Subsequently, on September 10, 2013, Appellant filed a motion
entitled “Defendant’s Motion for Resentencing Pursuant to Criminal Rule
47.” Appellant’s motion argued that he was entitled to be re-sentenced,
based upon claimed constitutional violations, namely that the search warrant
was not executed in a reasonable manner, and also that officers violated the
knock and announce rule in conducting a search of his residence. The trial
court treated Appellant’s motion as a petition for post-conviction relief and
denied it as untimely filed and barred by the doctrine of res judicata. It is
from the trial court’s October 22, 2013, judgment entry that Appellant now
brings his appeal, setting forth a single assignment of error for our review.
ASSIGNMENT OF ERROR
“I. THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION, ARTICLE I, SECTION 14, PROHIBITS POLICE OFFICERS FROM MAKING WARRANTLESS AND NONE CONSENNAL ENTRY INTO A SUSPECT’S HOME TO MAKE A FELONY ARREST.” [SIC]
LEGAL ANALYSIS
{¶ 4} In his sole assignment of error, Appellant contends that the
fourth amendment to both the Ohio and United States Constitutions Scioto App. No. 13CA3584 4
prohibited police officers from making a warrantless and nonconsensual
entry in his home, which led to his arrest. The initial motion filed in the trial
court wherein Appellant raised this argument was titled “Defendant’s
Motion for Resentencing Pursuant to Criminal Rule 47.” In that motion,
Appellant sought an order resentencing him, based upon his claim that his
sentences were contrary to law. This argument seemed to be based upon his
contention that police officers violated the knock and announce rule in
conducting a search of his residence. Although Appellant’s motion was not
expressly titled as such, the trial court treated it as a petition for post-
conviction relief and denied it as being both untimely filed and barred by the
doctrine of res judicata. For the following reasons, we agree with the
decision of the trial court.
{¶ 5} Appellant commenced the instant proceedings on September
10, 2013, with the filing of his motion for resentencing. Appellant’s motion
raised constitutional challenges to his convictions and sentences. We
initially note that courts may generally “recast irregular motions into
whatever category necessary to identify and to establish the criteria by which
a motion should be evaluated.” State v. Sanders, 4th Dist. Pickaway No.
12CA4, 2013-Ohio-1326, ¶ 5; citing State v. Lett, 7th Dist. Mahoning No.
09MA131, 2010-Ohio-3167, ¶ 15; citing State v. Schlee, 117 Ohio St.3d Scioto App. No. 13CA3584 5
153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12. As Appellant’s motion was
filed post-conviction and subsequent to his initial, direct appeal and because
it raised constitutional claims, we believe the trial court properly treated the
motion as a petition for post-conviction relief, brought pursuant to R.C.
2953.21.
{¶ 6} “[A] trial court's decision granting or denying a postconviction
petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of
discretion; a reviewing court should not overrule the trial court's finding on a
petition for postconviction relief that is supported by competent and credible
evidence.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 58. The term ‘abuse of discretion’ connotes more than an error
of law or of judgment; it implies the court's attitude is unreasonable,
arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980). Reviewing Appellant’s motion as a petition for post-
conviction relief, we find the trial court properly denied the motion as both
untimely and barred by res judicata.
{¶ 7} Here, Appellant filed an initial, direct appeal of his underlying
conviction. Generally, an appellant must file his petition for post-conviction
relief within 180 days of the filing of the transcript in an appeal, or within
180 days of the expiration of the time for filing an appeal, if he filed no Scioto App. No. 13CA3584 6
appeal. R.C. 2953.21(A)(2). “The time limitation prescribed in R.C.
2953.21(A)(2) is jurisdictional, i.e., a trial court cannot entertain an untimely
petition unless one of the exceptions set forth in R.C. [2953.23(A) ] applies.”
State v. Davis, 4th Dist. Washington No. 10CA25, 2011-Ohio-1706, ¶ 9;
citing State v. Smith, 4th Dist. Washington No. 06CA65, 2007-Ohio-4730, ¶
11. The transcripts in Appellant’s direct appeal of this matter were filed in
the court of appeals on February 15, 2012. As such, the expiration of time
for filing a petition for post-conviction relief expired one hundred eighty
days after that. Appellant, however, did not file his petition until September
10, 2013, which was well beyond that time limit. Thus, Appellant’s petition
was untimely filed, unless one of the exceptions applies.
{¶ 8} Here, R.C. 2953.23(A)(2) does not apply because DNA testing
has not established Appellant's actual innocence. What remains is for
Appellant to satisfy R.C. 2953.23(A)(1), which provides as follows:
“(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: Scioto App. No. 13CA3584 7
(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.”
{¶ 9} Here, Appellant does not attempt to argue that he was
unavoidably prevented from discovering any of the facts in support of
his claim or that a new federal or state right has been recognized that Scioto App. No. 13CA3584 8
applied to him retroactively. In fact, the arguments raised in
Appellant’s petition were raised in his direct appeal of this matter and
were rejected by this Court. State v. Eldridge, 4th Dist. Scioto No.
11CA3441, 2012-Ohio-3747, ¶ 33 (finding that the trial court did not
err in refusing to suppress the evidence based upon law enforcement's
alleged violation of the knock and announce rule). As such, Appellant
has not demonstrated that he satisfies the exceptions to timely filing
set forth in R.C. 2953.23(A). Thus, his petition was untimely filed.
{¶ 10} Further, as we noted in State v. Sanders at ¶ 7, The Supreme
Court of Ohio has held that the doctrine of res judicata applies when
determining whether post-conviction relief is warranted under R.C. 2953.21.
See State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, at the syllabus
(1996); State v. Nichols, 11 Ohio St.3d 40, 42, 463 N.E.2d 375 (1984); State
v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph eight of the
syllabus (1967). As such, a petitioner may not raise, for purposes of post-
conviction relief, any error that was raised, or could have been raised, on
direct appeal. State v. Sanders at ¶ 7; citing State v. Franklin, 4th Dist.
Meigs No. 05CA9, 2006-Ohio-1198, ¶ 10; State v. Peeples, 4th Dist.
Pickaway No. 05CA25, 2006-Ohio-218, ¶ 11. As we have already
discussed, the claim raised in Appellant’s petition for post-conviction relief Scioto App. No. 13CA3584 9
was also raised as part of Appellant’s direct appeal of this matter, and was
rejected by this Court. Appellant’s attempt to raise it once again is barred by
res judicata.
{¶ 11} In light of the foregoing, we reverse the judgment of the trial
court. The court’s judgment entry overruling Appellant’s motion for
resentencing is vacated. The petition for post-conviction relief should be
dismissed for lack of jurisdiction.
JUDGMENT REVERSED AND VACATED. Scioto App. No. 13CA3584 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND VACATED and Appellant recover costs from Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _____________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.