[Cite as State v. Andrews , 2016-Ohio-5905.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO Appellee

v. JAY SHERIDAN ANDREWS Appellant C.A. No. 28185

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CV 2009-06-1956
DECISION AND JOURNAL ENTRY Dated: September 21, 2016

HENSAL, Judge. {¶1} Defendant-Appellant, Jay Sheridan Andr ews, appeals from a judgment of the Summit County Court of Common Pleas, denying his Motion to Correct a Facially Illegal Sentence. For the following reasons, this Court affirms.

I. {¶2} In 2009, a jury convicted Mr. Andrews of two counts of feloni ous assault with repeat-violent-offender specifications. The trial court sentenced Mr. Andrews to eight years of incarceration for each felonious assault count to run concurrently , and seven years of incarceration for each repeat-violent-offender spec ification to run concurre ntly. The trial court ordered the repeat-violent-offender sentences and the felonious assault sentences to run consecutively, for a total of 15 years of incarceration. {¶3} Mr. Andrews filed a direct appeal, arguin g that his trial couns el was ineffective, that his convictions were based on insufficient evidence, that his convictions were against the2 manifest weight of the evidence, and that th e prosecutor’s remarks during closing argument deprived him of a fair trial. State v. Andrews , 9th Dist. Summit No. 25114, 2010-Ohio-6126, ¶ 9. This Court overruled each assignment of erro r and affirmed Mr. Andrews’s convictions on December 15, 2010. Id. at ¶ 39. {¶4} Almost five years later, on Septem ber 21, 2015, Mr. Andrews filed a document captioned “Motion to Correct a Facially Illegal Sentence[.]” In his motion, Mr. Andrews argued that his sentence was void because the trial cour t determined that the two counts of felonious assault were allied offenses of similar import under Revise d Code Section 2941.25, but then erroneously imposed two concurrent sentences for those offenses. He, therefore, requested the trial court to vacate its void sentence and hold a new sentencing hearing. The trial court denied Mr. Andrews’s motion, holding that it was an un timely petition for post-c onviction relief. Mr. Andrews now appeals, raising one assign ment of error for our review.

II. ASSIGNMENT OF ERROR
A TRIAL COURT’S ERRONEOUS INTERPRETATION OF THE LAW PURSUANT TO STATE V. BUSH (2002), 96 OHIO ST. 3D 235, STATE V. FISCHER (2010), 128 OHIO ST. 3D 92, AND OHIO CRIMINAL RULES OF PROCEDURE IS PLAIN ERROR AND DEPRIVED APPELLANT OF A SUBSTANTIAL RIGHT. {¶5} In his sole assignment of error, Mr. Andrews argues that the trial court erred byconstruing his Motion to Correct a Facially Illegal Sentence as an untimely petition for postconviction relief and denying it on that basis. We disagree. {¶6} In State v. Reynolds , the Ohio Supreme Court held that a motion, despite its caption, may be construed as a petition for post-conviction relief under Section 2953.21(A)(1) when it: (1) is filed subsequent to a direct appeal; (2) claims a denial of constitutional rights; (3)3 seeks to render the judgment void; and (4) asks for a vacation of the judgment and sentence. State v. Reynolds , 79 Ohio St.3d 158, 160 (1997). Mr. A ndrews’s motion meets all four requirements: (1) it was filed subs equent to his direct appeal, which he filed in 2009; (2) he claimed a denial of his constitu tional rights (namely, his right against double jeopardy); (3) he sought to render the judgment void; and (4) he moved the trial court to vacate the judgment and

sentence. {¶7} Mr. Andrews, however, cites the Oh io Supreme Court’s decision in State v. Bush in support of his position that the Reynolds analysis does not apply to his motion. State v. Bush , 96 Ohio St.3d 235, 2002-Ohio-3993. Specifically, he argues that Bush stands for the proposition that Reynolds only applies when a motion fails to indicate whether it is a petition for postconviction relief or a motion f iled pursuant to a specific rule of criminal procedure. Bush at ¶ 10. He argues that because he filed his motion under a specific criminal rule (i.e., Criminal Rule 47), the trial court erred by construing it a petition fo r post-conviction relief. Mr. Andrews also cites the Ohio Supreme Court’s decision in State v. Fischer for the proposition that a motion to correct an illegal sentence may be brought at any time. State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio6238, ¶ 25. {¶8} Mr. Andrews’s arguments are unpersuasive. While his motion does indicate that it is being filed pursuant to Criminal Rule 47 (“Motions”), that rule simply provides, in part, that “[a]n application to the court for an order shall be by motion.” This is distinguishable from Bush , wherein the Court specifically held that the statutes govern ing petitions for post-conviction relief do not govern motions to withdraw a guilty plea under Criminal Rule 32.1. Bush at ¶ 14. Further, to the extent that Mr. Andrews argues that a void sentence may be challenged at any time, this Court has held that “the failure to merge allied offenses of similar import does not4

result in a void sentence.” State v. Robinson , 9th Dist. Summit No. 27663, 2015-Ohio-3329, ¶ 5.Thus, despite his arguments, the trial court properly construed his motion as a petition for postconviction relief. {¶9} We now turn to the timeliness of Mr. Andrews’s motion. Section 2953.21(A)(2) provides that when a direct appeal is taken, a pe tition for post-conviction fo r relief shall be filed “no later than three hundred sixty-five days after th e date on which the trial transcript is filed in the court of appeals in the direct appeal of th e judgment of conviction[.]” Here, Mr. Andrews filed his petition more than five years after the date on which the trial transcript was filed in his direct appeal. Under Section 2953.23(A)(1), a cour t has no jurisdiction to hear an untimely or successive petition for post-c onviction relief, unless both of the following apply: (a) Either the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitione r must rely to present the claim for relief, or, subsequent to the period pr escribed in division (A)(2) of section 2953.21 of the Revised Code or to the f iling of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively to persons in the petitione r’s situation, and the petition asserts a claim based on that right. (b) The petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted or, if the claim challenges a sentence of death that, but for constitutional error at the sentencing hearing, no reasonable f actfinder would have found the petitioner eligible for the death sentence. {¶10} Mr. Andrews, however, has not established that these sections apply. The trial court, therefore, lacked jurisdiction to entert ain his untimely petition for post-conviction relief. Accordingly, Mr. Andrews’s assignment of error is overruled.

III. {¶11} Mr. Andrews’s assignment of error is overruled. The judgment of the Summit County Court of Common Pleas is affirmed.5 Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

MOORE, P. J. WHITMORE, J. CONCUR.

APPEARANCES: JAY SHERIDAN ANDREWS, pro se, Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.