State v. Medina

[Cite as State v. Medina, 2022-Ohio-1070.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 110726

v. :

ALBERTO MEDINA, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 31, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-14-589200-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Anthony T. Miranda, Assistant Prosecuting

Attorney, for appellee.

Alberto Medina, pro se.

MARY J. BOYLE, J.:

Defendant-appellant, Alberto Medina (“Medina”), pro se, appeals

from the trial court’s denial of his petition for postconviction relief. For the reasons

set forth below, we affirm.

In September 2014, Medina was charged in a 12-count indictment.

Counts 1-2 charged him with aggravated murder. Count 3 charged him with

aggravated burglary. Count 4 charged him with kidnapping. Count 5 charged him

with murder. Counts 6-7 charged him with felonious assault. Count 8 charged him

with domestic violence. Counts 9-11 charged him with endangering children. Count

12 charged him with tampering with evidence.1

In December 2014, Medina entered into a plea agreement with

plaintiff-appellee, the state of Ohio in which he pled guilty to an amended charge of

aggravated murder with a three-year firearm specification (Count 1) and

endangering children as charged in Counts 9-11. The remaining counts were

dismissed. The court then proceeded to sentence Medina to a total of 33 years to life

in prison, which was the jointly recommended sentence as part of the plea

agreement.

In August 2016, more than a year and a half after sentencing, Medina

filed a pro se motion for delayed appeal in State v. Medina, 8th Dist. Cuyahoga No.

104826, claiming that he was never advised of his right to appeal at sentencing.2

This court denied Medina’s motion. Medina filed a pro se delayed appeal with the

Ohio Supreme Court, which was denied in State v. Medina, 149 Ohio St.3d 1405,

1 Each of Counts 1-7 carried one- and three-year firearm specifications. Counts 1-2

also carried a sexually violent predator specification.

2The state indicates in its appellate brief that it “previously acknowledged that the

transcripts do not indicate that Medina was advised of his right to appellate counsel at

that time.”

2017-Ohio-2822, 74 N.E.3d 463. Medina then pursued a pro se writ of habeas

corpus in the United States District Court for the Northern District of Ohio, which

was dismissed in Medina v. Bracy, N.D.Ohio No. 1:17-CV-01884, 2020 U.S. Dist.

LEXIS 251600 (Oct. 22, 2020), and Medina v. Bracy, N.D.Ohio No. 1:17-CV-01884,

2021 U.S. Dist. LEXIS 45536 (Mar. 11, 2021).

In June 2021, Medina filed a pro se petition for postconviction relief

with the trial court. Medina argued that the trial court failed to advise him at

sentencing of his right to appeal, including the right to appellate counsel. He

supported the petition with his own affidavit, in which he stated, if he knew of his

“constitutional rights to appeal and have counsel on said appeal, [he] would

certainly have appealed, minimally, on the issues of ineffective assistance of counsel

and as to whether [his] plea was knowingly, voluntarily and intelligently made.” The

state opposed, and the trial court denied the petition in July 2021.

It is from this order that Medina appeals, raising the following three

assignments of error for review, which shall be discussed together:

Assignment of Error One: [Medina] was denied due process of law

under the Ohio and U.S. Constitutions when the trial court failed to

provide him his right to appeal and subsequently denied his

postconviction petition seeking to restore the jurisdiction of the court

to provide him the constitutional rights which he was deprived of at

sentencing pursuant to State v. Future, [8th Dist. Cuyahoga No. 96997,

2012-Ohio-2300], citing State v. Gover, [71 Ohio St.3d 577, 645 N.E.2d

1246 (1995)].

Assignment of Error Two: [Medina] was denied equal protection

under the law as required by the Fourteenth Amendment to the U.S.

Constitution when he was not afforded the same opportunity to have

his appellate rights provided to him as other similarly situated

defendants.

Assignment of Error Three: [Medina] was denied the effective

assistance of counsel when counsel failed to query for want of appeal,

inform him of his right to appeal and his right to counsel on said appeal,

and other avenues for remedy of the denial of constitutional rights, to

include a postconviction petition.

Within these assigned errors, Medina argues his petition for

postconviction relief is proper under Future and that his direct appeal was untimely

because he was unaware of the time limits to file an appeal. Medina claims his

ignorance was due to the failures of both his defense counsel and the trial court to

inform him of his appellate rights. Medina further claims that the denial of his right

to a timely appeal and appellate counsel violates his constitutional rights to due

process and equal protection. Medina also argues he was denied his right to effective

assistance of counsel when defense counsel failed to explain his right to an appeal.

In Future, the trial court failed to advise the defendant of his appellate

rights. Id. at ¶ 2. The defendant then filed a motion for resentencing three years

after his guilty plea, which the trial court granted. Id. On appeal, this court, relying

on Gover, noted that the appropriate remedy, in this instance, “is first to seek leave

to file a delayed appeal with this court and, if unsuccessful, to then file a motion for

postconviction relief through R.C. 2953.21 with the trial court.” Id. at ¶ 5. As a

result, this court found that the “trial court lacked jurisdiction to vacate a final order

of sentence without a postconviction relief petition” and reversed and remanded the

matter to the trial court with instructions to reinstate its original sentencing entry.

Id. at ¶ 7-8.

In Gover, the trial court informed the defendant of his right to appeal

his conviction at the sentencing hearing but did not take the proper steps to inform

defendant’s attorney of the appointment on appeal. As a result, a timely appeal was

not filed. Ten months later, when the defendant realized that a direct appeal had

not been filed, he moved the appellate court for a delayed appeal on the basis that

he believed an appointed attorney would be bringing the appeal on his behalf. The

appellate court denied the motion for a delayed appeal, and also denied the motion

to reconsider filed by a state public defender. The matter was then appealed to the

Ohio Supreme Court. Id., 71 Ohio St.3d at 577-578, 645 N.E.2d 1246.

The Gover Court held that since the denial of the right to appellate

counsel was due to an error at the trial level, a motion before the appellate court was

not the appropriate way for the defendant to seek relief. Id. at 580. Instead, “Gover

should himself file a petition for postconviction relief under R.C. 2953.21. The time

between the entry of the judgment of conviction and the filing of the postconviction

relief petition will not be problematic, since a petition under that statute may be filed

‘at any time.’ R.C. 2953.21(A).” (Emphasis added.) Id. After the filing of the

petition, R.C. 2953.21(C) requires that the trial court consider whether the petition

presents substantive grounds for relief. The Ohio Supreme Court has “already

established that a failure by a trial court to notify appointed appellate counsel of his

appointment qualifies as a denial of the defendant’s right to counsel[.]” Id. at 581.

The Gover Court concluded that the “appropriate avenue of relief in this case is for

the trial court to reenter the judgment against the defendant, with the result of

reinstating the time within which the defendant may timely file a notice of appeal

pursuant to App.R. 4(A).” Id., citing State v. Miller, 44 Ohio App.3d 42, 541 N.E.2d

105 (6th Dist.1988).

However, at the time Gover was issued in 1995, R.C. 2953.21 did not

set forth a time limit for the filing of a postconviction relief petition. The statute has

subsequently been amended to now provide that in instances where no direct appeal

is taken, the petition shall be filed no later than 365 days after the expiration of the

time for filing the appeal, except as otherwise provided in R.C. 2953.23. R.C.

2953.21(A)(2)(a).

R.C. 2953.23 provides that the trial court may entertain an untimely

petition for postconviction relief if the petitioner demonstrates either (1) the

petitioner was unavoidably prevented from discovering facts necessary for the claim

for relief, or (2) the United States Supreme Court recognized a new federal or state

right that applies retroactively to persons in petitioner’s situation, and the petitioner

establishes by clear and convincing evidence that no reasonable factfinder would

have found him guilty but for constitutional error at trial. R.C. 2953.23(A)(1)(a)-(b).

Alternatively, the trial court may entertain untimely petition for postconviction

relief if the petitioner presents DNA testing that establishes actual innocence. R.C.

2953.23(A)(2).

Here, Medina’s petition for postconviction relief was due in January

2016 since he did not file a direct appeal from his conviction. Medina, however, did

not file his petition until five and a half years later in June 2021. Therefore, Medina’s

petition is clearly untimely. With regard to the relevant exceptions set forth in R.C.

2953.23, Medina did not present “facts” that he was “unavoidably prevented from

discovering,” nor did he identify a new federal or state right recognized by the United

States Supreme Court. R.C. 2953.23(A)(1)(a). Medina also did not conduct DNA

testing that yielded new evidence as set forth in R.C. 2953.23(A)(2). Thus, Medina

has failed to demonstrate any of the R.C. 2953.23 exceptions entitling him relief.

Because none of these exceptions apply, the trial court was without

jurisdiction to consider Medina’s untimely petition for postconviction relief. State

v. Schultz, 8th Dist. Cuyahoga No. 85430, 2005-Ohio-6627, ¶ 11, citing State v.

Warren, 8th Dist. Cuyahoga No. 76612, 2000 Ohio App. LEXIS 5873 (Dec. 14,

2000); State v. Valentine, 8th Dist. Cuyahoga No. 77882, 2000 Ohio App. LEXIS

5686 (Dec. 7, 2000); State v. Wheatt, 8th Dist. Cuyahoga App. No. 77292, 2000

Ohio App. LEXIS 4953 (Oct. 26, 2000); State v. Gaddis, 8th Dist. Cuyahoga No.

77058, 2000 Ohio App. LEXIS 4765 (Oct. 12, 2000); see also State v. Williams, 8th

Dist. Cuyahoga No. 100639, 2014-Ohio-3589, ¶ 7, citing State v. Hutton, 8th Dist.

Cuyahoga No. 80763, 2007-Ohio-5443 (Where this court stated, “The time

requirement for postconviction relief, pursuant to R.C. 2953.21(A), is

jurisdictional.”); State v. Scott, 8th Dist. Cuyahoga No. 106863, 2018-Ohio-4894, ¶

12, citing State v. Alexander, 8th Dist. Cuyahoga No. 105969, 2018-Ohio-1198

(Where this court stated, “Generally, the trial court has no jurisdiction to consider

an untimely petition for postconviction relief.”). Therefore, because Medina’s

petition was untimely and no exception under R.C. 2953.23(A) applies, the trial

court properly dismissed his petition for postconviction relief.

Accordingly, the first, second, and third assignments of error are

overruled.

Judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and

EMANUELLA D. GROVES, J., CONCUR