Youngstown Daily Legal News

Court rules petition for post-conviction relief was untimely

ANNIE YAMSON
Special to the Legal News
Published: January 28, 2014

The 9th District Court of Appeals recently affirmed the judgment of the Summit County Court of Common Pleas, denying a defendant’s petition for post-conviction relief.

The defendant, Breshaun Nichols, was convicted in 2009 of attempted murder, felonious assault, aggravated robbery, having weapons under disability and three firearm specifications.

He was sentenced to 29 years in prison and his convictions were affirmed by the 9th District in his first appeal.

Following the decision of the court of appeals, the trial court ordered Nichols to appear for resentencing due to a defective post-release control notification.

On March 28, 2013, Nichols filed a pro se petition for post-conviction relief which the court declared untimely.

It ultimately concluded that it lacked jurisdiction to consider the petition which it subsequently dismissed.

Nichols appealed from the trial court’s judgment arguing that, before it denied his petition, the court was required to hold an evidentiary hearing.

“We disagree,” wrote Judge Beth Whitmore on behalf of the 9th District’s three-judge appellate panel. “Whether a defendant’s PCR petition satisfied the procedural requirements set forth in R.C. 2953.21 and R.C. 2953.23 is an issue of law.”

According to R.C. 2953.21, a PCR petition “shall be filed no later than 180 days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction.”

An exception to the time limit can be made if the defendant can prove that he was “unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief.”

The time limit can also be overlooked if the U.S. Supreme Court recognized a new law that applies retroactively to the defendant or if there is “clear and convincing evidence that, but for the constitutional error at trial, no reasonable trier of fact would have found the petitioner guilty of the offense.”

If the petition does not meet the requirement, Judge Whitmore noted that a trial court lacks jurisdiction to consider it.

She also held that, although Nichols chose to file his petition without the assistance of counsel, pro se litigants are “not given greater rights than represented parties and must bear the consequences of (their) mistakes.”

“Nichols appears to argue that he was entitled to a PCR because he received ineffective assistance of counsel,” wrote Judge Whitmore. “Nichols claims that his counsel ‘failed to fully explain that an Alford plea could be tendered’ and advised him not to accept ‘a plea offer that was tendered at the critical stage of pre-trial.’”

Nichols noted in his affidavit in support of his petition that the plea bargain would have resulted in a 13-year sentence instead of the 29 years he actually received.

He also claimed that his trial counsel “misled” him by failing to advise him on possible allied offenses.

“Nichols failed to demonstrate in his petition that he was ‘unavoidably prevented’ from discovering the facts entitling him to relief,” Judge Whitmore wrote.

Furthermore, the appellate panel found that Nichols admitted that his counsel informed him of the state’s plea offer.

His only argument was that his counsel’s poor advice led him to reject the offer.

“Nichols fails to explain why he could not have challenged his counsel’s allegedly poor advice as soon as the trial court sentenced him,” wrote Judge Whitmore. “At that point, Nichols would have had reason to know that he received a significantly longer sentence than the state had offered. He was not unavoidably prevented from discovering the foregoing information.”

The appellate panel concluded that Nichols’ petition was untimely and that he failed to satisfy the requirements for an untimely petition.

“The trial court did not err by dismissing the petition,” wrote Judge Whitmore. “Moreover, the court was not required to hold a hearing before doing so.”

The court of appeals affirmed the judgment of the Summit County court unanimously, with Presiding Judge Donna Carr and Judge Jennifer Hensal concurring.

The case is cited State v. Nichols, 2014-Ohio-102.

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