[Cite as State v. Hunt, 2021-Ohio-528.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2020 AP 09 0019 KOLT HUNT : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas County Court of Common Pleas, Case No. 2018CR070234
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 24, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT C. URBAN, JR. KOLT HUNT PRO SE Assistant Prosecuting Attorney #A759551 125 East High Street Belmont Correctional Institute New Philadelphia, OH 44663 68158 Bannock Road St. Clairsville, OH 43950 [Cite as State v. Hunt, 2021-Ohio-528.]
Gwin, P.J.
{¶1} Appellant Kolt L. Hunt appeals the August 20, 2020 judgment entry of the
Tuscarawas County Court of Common Pleas denying his petition for post-conviction relief.
Appellee is the state of Ohio.
Facts & Procedural History
{¶2} In 2019, appellant was found guilty by a jury of two counts of child
endangering, one violation of R.C. 2919.22(B)(1) and (E)(2)(d), a felony of the second
degree, and one violation of R.C. 2919.22(A) and (E)(2)(c), a felony of the third degree.
Appellant appealed his convictions and sentence to this Court, arguing: his convictions
were against the manifest weight of the evidence; his convictions were based upon
insufficient evidence; ineffectiveness of trial counsel for failing to object to Dr. Benton’s
testimony regarding the pain the child would have experienced during and after appellant
beat him; and prosecutorial misconduct, amounting to the denial of due process. In State
v. Hunt, 5th Dist. Tuscarawas No. 2019 AP 07 0023, 2020-Ohio-1124, this Court
overruled appellant’s assignments of error and affirmed appellant’s convictions and
sentence. Appellant filed an application for reconsideration. This Court denied his
application for reconsideration on January 6, 2021.
{¶3} On August 3, 2020, appellant filed a petition to vacate or set aside
conviction and sentence, arguing he was denied due process of law, denied effective
assistance of counsel, and subject to cruel and unusual punishment. Appellee filed an
objection to the petition on August 10, 2020.
{¶4} On August 20, 2020, the trial court issued a judgment entry denying the
petition. The trial court stated it, “reviewed the petition of the Defendant and the Tuscarawas County, Case No. 2020 AP 09 0019 3
objections set forth by the State of Ohio.” Further, the trial court found, “that the petition
to vacate or set aside judgment of conviction or sentence is not well taken and should be
denied.”
{¶5} Appellant appeals the August 20, 2020 judgment entry of the Tuscarawas
County Court of Common Pleas and assigns the following as error:
{¶6} “I. THE TRIAL COURT ERRED IN DENYING PETITIONER HUNT AN
EVIDENTIARY HEARING IN REGARD TO HIS PETITION FOR POST-CONVICTION
RELIEF.
{¶7} “II. THE TRIAL COURT ERRED IN ISSUING INADEQUATE AND
ERRONEOUS FINDINGS OF FACT AND CONCLUSIONS OF LAW IN REGARD TO
PETITIONER HUNT’S PETITION FOR POST-CONVICTION RELIEF.”
II.
{¶8} We first address appellant’s second assignment of error because it is
dispositive of appellant’s appeal. Appellant argues in his second assignment of error that
the trial court erred in denying his petition for post-conviction relief without making findings
of fact and conclusions of law as required by R.C. 2953.21. We agree.
{¶9} R.C. 2953.21(H) states, “if the court does not find grounds for granting relief,
it shall make and file findings of fact and conclusions of law and shall enter judgment
denying relief on the petition.” If a court fails to do so, the decision is subject to reversal
on appeal. State v. Reese, 5th Dist. Muskingum No. CT2017-0017, 2017-Ohio-4263;
State ex rel. Penland v. Dinkelacker, -- N.E.3d ----, 2020-Ohio-3774.
{¶10} The findings of fact and conclusions of law should be explicit enough to give
the appellate court a clear understanding of the basis of the trial court’s decision and Tuscarawas County, Case No. 2020 AP 09 0019 4
enable it to determine the grounds on which the trial court reached its decision. State v.
Jacks, 5th Dist. Licking No. 99 CA 113, 2000 WL 329740 (Feb. 29, 2000), citing State v.
Lester, 41 Ohio St.2d 51, 322 N.E.2d 656 (1975). The purpose of requiring the trial court
to include findings of fact and conclusions of law in its judgment entry is to sufficiently
apprise both the petitioner and the potential appellate court of the grounds for its decision.
State v. Staats, 5th Dist. Stark No. 2015CA00207, 2016-Ohio-2921.
{¶11} The Supreme Court has held that a trial court “need not issue findings of
fact and conclusions of law when it dismisses an untimely [post-conviction-relief] petition.”
State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155.
If a petition for post-conviction relief is untimely, the trial court had no clear duty to issue
findings of fact or conclusions of law. Dillon v. Cottrill, 5th Dist. Muskingum No. CT2014-
0053, 2015-Ohio-1785. Further, a trial court “has no duty to issue findings of fact and
conclusions of law on successive * * * petitions for post-conviction relief.” State ex rel.
George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, 889 N.E.2d 533.
{¶12} This is the first post-conviction petition appellant filed and is therefore not a
successive petition. Appellee contends the trial court was not required to issue findings
of fact and conclusions of law because appellant’s petition was not timely filed. Appellant
filed a direct appeal of his sentencing entry. Pursuant to R.C. 2953.21(A)(2), a petition
for post-conviction relief must be filed no later than 365 days after the date on which the
trial transcript is filed with the court of appeals in the direct appeal of the judgment of
conviction. In this case, the transcript in appellant’s direct appeal was filed on July 30,
2019. Thus, pursuant to R.C. 2953.21(A)(2), appellant’s petition had to be filed by July
29, 2020. Appellant filed his petition on August 3, 2020. Tuscarawas County, Case No. 2020 AP 09 0019 5
{¶13} However, on March 9, 2020, the Governor of the State of Ohio issued
Executive Order 2020-01D and declared a state of emergency in Ohio in response to
COVID-19. On March 27, 2020, the Governor of Ohio signed into law Am.Sub.H.B. No.
197, which immediately tolled, retroactively to March 9, 2020, all statutorily established
statutes of limitations, time limitations, and deadlines in the Ohio Revised Code and
Administrative Code until July 30, 2020. In re Tolling of Time Requirements Imposed by
Rules Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 2020-
Ohio-1166, 141 N.E.3d 974. The Ohio Supreme Court determined that this tolling order
applied to all filing deadlines within the applicable period. Id. The deadline for appellant’s
petition in this case fell within the emergency period. Because the deadline fells within
the emergency period, it is tolled effective March 9, 2020. 223 days had already passed
before the deadline was tolled.
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[Cite as State v. Hunt, 2021-Ohio-528.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2020 AP 09 0019 KOLT HUNT : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas County Court of Common Pleas, Case No. 2018CR070234
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 24, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT C. URBAN, JR. KOLT HUNT PRO SE Assistant Prosecuting Attorney #A759551 125 East High Street Belmont Correctional Institute New Philadelphia, OH 44663 68158 Bannock Road St. Clairsville, OH 43950 [Cite as State v. Hunt, 2021-Ohio-528.]
Gwin, P.J.
{¶1} Appellant Kolt L. Hunt appeals the August 20, 2020 judgment entry of the
Tuscarawas County Court of Common Pleas denying his petition for post-conviction relief.
Appellee is the state of Ohio.
Facts & Procedural History
{¶2} In 2019, appellant was found guilty by a jury of two counts of child
endangering, one violation of R.C. 2919.22(B)(1) and (E)(2)(d), a felony of the second
degree, and one violation of R.C. 2919.22(A) and (E)(2)(c), a felony of the third degree.
Appellant appealed his convictions and sentence to this Court, arguing: his convictions
were against the manifest weight of the evidence; his convictions were based upon
insufficient evidence; ineffectiveness of trial counsel for failing to object to Dr. Benton’s
testimony regarding the pain the child would have experienced during and after appellant
beat him; and prosecutorial misconduct, amounting to the denial of due process. In State
v. Hunt, 5th Dist. Tuscarawas No. 2019 AP 07 0023, 2020-Ohio-1124, this Court
overruled appellant’s assignments of error and affirmed appellant’s convictions and
sentence. Appellant filed an application for reconsideration. This Court denied his
application for reconsideration on January 6, 2021.
{¶3} On August 3, 2020, appellant filed a petition to vacate or set aside
conviction and sentence, arguing he was denied due process of law, denied effective
assistance of counsel, and subject to cruel and unusual punishment. Appellee filed an
objection to the petition on August 10, 2020.
{¶4} On August 20, 2020, the trial court issued a judgment entry denying the
petition. The trial court stated it, “reviewed the petition of the Defendant and the Tuscarawas County, Case No. 2020 AP 09 0019 3
objections set forth by the State of Ohio.” Further, the trial court found, “that the petition
to vacate or set aside judgment of conviction or sentence is not well taken and should be
denied.”
{¶5} Appellant appeals the August 20, 2020 judgment entry of the Tuscarawas
County Court of Common Pleas and assigns the following as error:
{¶6} “I. THE TRIAL COURT ERRED IN DENYING PETITIONER HUNT AN
EVIDENTIARY HEARING IN REGARD TO HIS PETITION FOR POST-CONVICTION
RELIEF.
{¶7} “II. THE TRIAL COURT ERRED IN ISSUING INADEQUATE AND
ERRONEOUS FINDINGS OF FACT AND CONCLUSIONS OF LAW IN REGARD TO
PETITIONER HUNT’S PETITION FOR POST-CONVICTION RELIEF.”
II.
{¶8} We first address appellant’s second assignment of error because it is
dispositive of appellant’s appeal. Appellant argues in his second assignment of error that
the trial court erred in denying his petition for post-conviction relief without making findings
of fact and conclusions of law as required by R.C. 2953.21. We agree.
{¶9} R.C. 2953.21(H) states, “if the court does not find grounds for granting relief,
it shall make and file findings of fact and conclusions of law and shall enter judgment
denying relief on the petition.” If a court fails to do so, the decision is subject to reversal
on appeal. State v. Reese, 5th Dist. Muskingum No. CT2017-0017, 2017-Ohio-4263;
State ex rel. Penland v. Dinkelacker, -- N.E.3d ----, 2020-Ohio-3774.
{¶10} The findings of fact and conclusions of law should be explicit enough to give
the appellate court a clear understanding of the basis of the trial court’s decision and Tuscarawas County, Case No. 2020 AP 09 0019 4
enable it to determine the grounds on which the trial court reached its decision. State v.
Jacks, 5th Dist. Licking No. 99 CA 113, 2000 WL 329740 (Feb. 29, 2000), citing State v.
Lester, 41 Ohio St.2d 51, 322 N.E.2d 656 (1975). The purpose of requiring the trial court
to include findings of fact and conclusions of law in its judgment entry is to sufficiently
apprise both the petitioner and the potential appellate court of the grounds for its decision.
State v. Staats, 5th Dist. Stark No. 2015CA00207, 2016-Ohio-2921.
{¶11} The Supreme Court has held that a trial court “need not issue findings of
fact and conclusions of law when it dismisses an untimely [post-conviction-relief] petition.”
State ex rel. Kimbrough v. Greene, 98 Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155.
If a petition for post-conviction relief is untimely, the trial court had no clear duty to issue
findings of fact or conclusions of law. Dillon v. Cottrill, 5th Dist. Muskingum No. CT2014-
0053, 2015-Ohio-1785. Further, a trial court “has no duty to issue findings of fact and
conclusions of law on successive * * * petitions for post-conviction relief.” State ex rel.
George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, 889 N.E.2d 533.
{¶12} This is the first post-conviction petition appellant filed and is therefore not a
successive petition. Appellee contends the trial court was not required to issue findings
of fact and conclusions of law because appellant’s petition was not timely filed. Appellant
filed a direct appeal of his sentencing entry. Pursuant to R.C. 2953.21(A)(2), a petition
for post-conviction relief must be filed no later than 365 days after the date on which the
trial transcript is filed with the court of appeals in the direct appeal of the judgment of
conviction. In this case, the transcript in appellant’s direct appeal was filed on July 30,
2019. Thus, pursuant to R.C. 2953.21(A)(2), appellant’s petition had to be filed by July
29, 2020. Appellant filed his petition on August 3, 2020. Tuscarawas County, Case No. 2020 AP 09 0019 5
{¶13} However, on March 9, 2020, the Governor of the State of Ohio issued
Executive Order 2020-01D and declared a state of emergency in Ohio in response to
COVID-19. On March 27, 2020, the Governor of Ohio signed into law Am.Sub.H.B. No.
197, which immediately tolled, retroactively to March 9, 2020, all statutorily established
statutes of limitations, time limitations, and deadlines in the Ohio Revised Code and
Administrative Code until July 30, 2020. In re Tolling of Time Requirements Imposed by
Rules Promulgated by Supreme Court & Use of Technology, 158 Ohio St.3d 1447, 2020-
Ohio-1166, 141 N.E.3d 974. The Ohio Supreme Court determined that this tolling order
applied to all filing deadlines within the applicable period. Id. The deadline for appellant’s
petition in this case fell within the emergency period. Because the deadline fells within
the emergency period, it is tolled effective March 9, 2020. 223 days had already passed
before the deadline was tolled. Once the emergency period ended, appellant had 142
days left after July 30, 2020, to file his petition. Accordingly, appellant’s petition was
timely.
{¶14} Appellee also contends appellant failed to submit substantive grounds for
relief and that his claims are barred by res judicata. However, this analysis is relevant to
whether appellant is entitled to an evidentiary hearing, not to a determination of whether
findings of fact and conclusions of law in the trial court’s judgment entry are sufficient to
apprise the petitioner and this Court of the grounds for its decision. State v. Atkinson, 5th
Dist. Muskingum No. CT2019-0055, 2019-Ohio-3122; R.C. 2953.21(D); R.C. 2953.21(H).
{¶15} In this case, the trial court did not make any findings of fact and conclusions
of law, and denied the petition for post-conviction relief without stating its reasons for
denying the petition. We therefore sustain appellant’s second assignment of error and Tuscarawas County, Case No. 2020 AP 09 0019 6
reverse and remand this matter to the trial court to make findings of fact and conclusions
of law. We will not address appellant’s first assignment of error, as it is moot based upon
our disposition of appellant’s second assignment of error. Further, appellant filed a
motion on January 20, 2021 regarding leave to file additional pages to his brief and leave
to add an additional assignment of error to his brief. We also find this motion moot based
upon our disposition of appellant’s second assignment of error.
{¶16} Based on the foregoing, the August 20, 2020 judgment entry of the
Tuscarawas County Court of Common Pleas is reversed and remanded to the trial court
for proceedings consistent with this opinion.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J, concur