[Cite as State v. Hunt , 2021-Ohio-528.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsKOLT HUNT Defendant-Appellant JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, J. : : : Case No. 2020 AP 09 0019 : : : 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 ent ry of the Tuscarawas County Court of Common Pleas denying his petition fo r 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 f elony 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 convictio ns were based upon insufficient evidence; ineffectiveness of trial counsel for fai ling to object to Dr. Benton’s testimony regarding the pain the child would have experienced d uring 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, thi s Court overruled appellant’s assignments of error and affirmed appella nt’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 l aw, denied effective assistance of counsel, and subject to cruel and unusual punishm ent. Appellee filed an objection to the petition on August 10, 2020. {¶4} On August 20, 2020, the trial court issued a judgment entry den ying the petition. The trial court stated it, “reviewed the petition of the Defendant and theTuscarawas 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 no t well taken and should be

denied.” {¶5} Appellant appeals the August 20, 2020 judgment entry of the Tus carawas 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-CONVICTI ON

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-CONVICT ION RELIEF.”

II. {¶8} We first address appellant’s second assignment of error because it is dispositive of appellant’s appeal. Appellant argues in his sec ond assignment of error that the trial court erred in denying his petition for post-convicti on 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, th e 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 t rial court’s decision andTuscarawas County, Case No. 2020 AP 09 0019 4

enable it to determine the grounds on which the trial court rea ched its decision. State v.

Jacks , 5th Dist. Licking No. 99 CA 113, 2000 WL 329740 (Feb. 29, 200 0), citing State v.

Lester , 41 Ohio St.2d 51, 322 N.E.2d 656 (1975). The purpose of requ iring the trial court to include findings of fact and conclusions of law in its judgm ent entry is to sufficiently apprise both the petitioner and the potential appellate court o f 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 f indings 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 i ssue findings of fact and conclusions of law on successive * * * petitions for post-convi ction 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 dire ct 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 petiti on 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 is sued Executive Order 2020-01D and declared a state of emergency in O hio 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 t hat 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. Becaus e the deadline fells within the emergency period, it is tolled effective March 9, 2020. 22 3 days had already passed before the deadline was tolled. Once the emergency period ende d, appellant had 142 days left after July 30, 2020, to file his petition. According ly, appellant’s petition was timely. {¶14} Appellee also contends appellant failed to submit substantive g rounds 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 ju dgment entry are sufficient to apprise the petitioner and this Court of the grounds for its de cision. 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 with out stating its reasons for denying the petition. We therefore sustain appellant’s second assignment of error andTuscarawas County, Case No. 2020 AP 09 0019 6

reverse and remand this matter to the trial court to make findi ngs of fact and conclusions of law. We will not address appellant’s first assignment of er ror, as it is moot based upon our disposition of appellant’s second assignment of error. Fur ther, appellant filed a motion on January 20, 2021 regarding leave to file additional p ages 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 t he Tuscarawas County Court of Common Pleas is reversed and remande d to the trial court for proceedings consistent with this opinion. By Gwin, P.J., Hoffman, J., and Wise, Earle, J, concur