State v. Phillips

2014 Ohio 597

• Court: Ohio Court of Appeals
• Decided: February 18, 2014
• Docket: 2013 CA 00160
• Status: Published

Opinion

[Cite as State v. Phillips, 2014-Ohio-597.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. 2013 CA 00160 JEFFREY SCOTT PHILLIPS

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2010 CR 0772

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: February 18, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO JEFFREY PHILLIPS PROSECUTING ATTORNEY PRO SE KATHLEEN O. TATARSKY T.C.I. ASSISTANT PROSECUTOR Post Office Box 901 110 Central Plaza South, Suite 510 Leavittsburg, Ohio 44430 Canton, Ohio 44702-1413 [Cite as State v. Phillips, 2014-Ohio-597.]

Wise, J.

{¶1} Appellant Jeffrey Scott Phillips appeals the July 12, 2012, decision of the

Stark County Common Pleas Court denying his petition for post conviction relief.

{¶2} Appellee is the State of Ohio.

{¶3} This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶4} “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

{¶5} This appeal shall be considered in accordance with the aforementioned

rule.

STATEMENT OF THE FACTS AND CASE

{¶6} On June 3, 2010, Appellant Jeffrey Scott Phillips was indicted for

aggravated murder, in violation of R.C. 2903.01(B), with two death penalty

specifications pursuant to R.C. 2929.04(A)(7). Appellant was further charged with

aggravated robbery, in violation of R.C. 2911.01(A)(3); aggravated burglary, in violation

of R.C. 2911.11(A)(1); tampering with evidence, in violation of R.C. 2921.12(A)(1); and

arson, in violation of R.C. 2909.03(A)(1).

{¶7} The charges arose from the murder of James Leeson, a sixty-six (66) year

old retired Alliance firefighter, which occurred on March 10, 2010. Mr. Leeson was beaten and stabbed in his home during the course of a robbery wherein two flat screen

televisions and an automobile were stolen. The automobile was later set on fire.

{¶8} Following a jury trial, Appellant was convicted of aggravated murder,

aggravated robbery, aggravated burglary, and tampering with evidence and arson.

{¶9} Following the mitigation phase of the trial, the jury recommended a

sentence of life without parole.

{¶10} On November 15, 2010, the trial court sentenced appellant to life

imprisonment without the possibility of parole for the aggravated murder of Leeson, a

ten (10) year prison term for aggravated robbery, and a ten (10) year prison term for

aggravated burglary. The trial court further sentenced appellant to a five (5) year prison

term for tampering with evidence and an eighteen (18) month prison term for arson. In

all, appellant was sentenced to a prison term of life without the possibility of parole and

an additional twenty-five (25) years and was ordered to pay the costs of prosecution.

{¶11} On September 12, 2011, Appellant filed a Petition to Vacate or Set Aside

Judgment of Conviction or Sentence, along with various other motions.

{¶12} On November 16, 2011, the State filed a Response to Petition to Vacate

or Set aside Sentence, a Motion to Dismiss and Motion for Summary Judgment.

{¶13} On December 16, 2011, Appellant filed a direct appeal of his sentence

and convictions.

{¶14} By Opinion and Entry filed December 19, 2011, this Court rejected the

appeal. See State v. Phillips, 5th Dist. Stark App. No. 2010CA00388, 2011-Ohio-6569.

Appellant’s appeal to the Ohio Supreme Court was also rejected. See State v. Phillips,

131 Ohio St.3d 1510, 2012-Ohio-1710. {¶15} On July 11, 2012, the trial court granted the State’s Motion to Dismiss and

for Summary Judgment, dismissing Appellant’s Motion for Post-Conviction Relief.

{¶16} On December 14, 2012, Appellant filed a motion for “Relief from Judgment

Civil Rule 60(B)”.

{¶17} On January 23, 2013, the State filed its Response to Relief from

Judgment Civil Rule 60(B).

{¶18} On May 20, 2013, Appellant filed a Demand for Findings of Fact and

Conclusions of Law.

{¶19} On June 5, 2013, the State filed its Response to Appellant’s Demand for

Findings of Fact and Conclusions of Law.

{¶20} On June 24, 2013, Appellant filed a Motion for Findings of Fact and

{¶21} By Judgment Entry filed July 12, 2013, the trial court granted the State’s

Motion for Summary Judgment and Dismissing Petition for Post Conviction Relief.

{¶22} By Judgment Entry filed also on July 12, 2013, the trial court dismissed

Appellant’s motion for findings of fact and conclusions of law.

{¶23} Appellant now appeals, assigning the following error for review:

ASSIGNMENT OF ERROR

{¶24} “I. THE COURT OF COMMON PLEAS ABUSED ITS DISCRETION

WHEN IT FAILED AND/OR REFUSED TO PROVIDE FINDINGS OF FACT AND

CONCLUSIONS OF LAW IN SUPPORT OF ITS DISCRETION TO DENY THE POST-

CONVICTION RELIEF.” I.

{¶25} In his sole Assignment of Error, Appellant claims that the trial court erred

in refusing to provide findings of fact and conclusions of law in support of its denial of

his petition for post-conviction relief. We disagree.

{¶26} As an initial matter, we must determine whether the instant appeal is

timely. The decision from which Appellant is appealing is the trial court’s July 12, 2012,

decision denying his post-conviction relief petition. However, Appellant failed to appeal

such decision, choosing instead to wait until May 20, 2013 to file a “Demand for

Findings of Fact and Conclusions of Law", and a subsequent “Motion for Findings of

Fact and Conclusions of Law” on June 24, 2013.

{¶27} We therefore find the instant appeal is not timely filed.

{¶28} For the foregoing reasons, the appeal of the judgment of the Court of

Common Pleas of Stark County, Ohio, is dismissed.

By: Wise, J.

Hoffman, P. J., and

Farmer, J., concur.