[Cite as State v. Hale, 2023-Ohio-3199.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO,

Appellee,

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JOSHUA E. HALE,

Appellant.

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CASE NO. CA2023-03-019

CA2023-03-021

O P I N I O N

9/11/2023

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS

Case No. CR 2000 05 0701

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant 

Prosecuting Attorney, for appellee.

Joshua E. Hale, pro se.

S. POWELL, P.J.

{¶ 1} Appellant, Joshua E. Hale, appeals the decision of the Butler County Court of 

Common Pleas dismissing his second, successive petition for postconviction relief as 

untimely. For the reasons outlined below, we affirm.

{¶ 2} On July 17, 2000, the Butler County Grand Jury returned an indictment 
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charging the then 17-year-old Hale with one count of first-degree felony rape with a 

specification of force in violation of R.C. 2907.02(A)(1)(b). The charge arose after it was 

alleged Hale used an object to penetrate the vagina of his girlfriend's two-year-old daughter, 

M.D., on the morning of June 4, 1999. Hale was found guilty following a jury trial and 

thereafter sentenced to a mandatory, indefinite sentence of 10-years-to-life in prison. Hale's

sentence was imposed by the trial court pursuant to R.C. 2907.02(B) and 2929.13(F). Hale 

appealed his conviction to this court, raising four assignments of error for review. This 

included Hale arguing his conviction was not supported by sufficient evidence and was 

against the manifest weight of the evidence. This court disagreed and affirmed Hale's 

conviction in its entirety. State v. Hale, 12th Dist. Butler No. CA2002-02-037, 2003-Ohio4448.

{¶ 3} On November 18, 2004, Hale filed his first petition for postconviction relief. 

The trial court denied Hale's petition on February 10, 2005. Hale did not appeal that 

decision. Nearly 17 years later, on December 17, 2021, Hale filed his second, successive 

petition for postconviction relief. To support this petition, Hale argued that the rule espoused

by the Ohio State Supreme Court in State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 

that a trial court must separately consider the youth of a juvenile offender as a mitigating 

factor before imposing a life sentence for aggravated murder under R.C. 2929.03, even if 

that sentence includes eligibility for parole, should be applied retroactively to his case, 

thereby rendering unconstitutional the mandatory, indefinite 10-years-to-life prison 

sentence that he received for raping the two-year old victim in this case. 

{¶ 4} On February 6, 2023, the trial court issued a decision dismissing Hale's 

second, successive postconviction relief petition as untimely. In so doing, the trial court 

determined that:
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Hale has failed to establish that he was unavoidably prevented 

from challenging the constitutionality of his conviction and 

sentence. He has failed to demonstrate that he was 

unavoidably prevented from discovering the facts upon which 

he now relies in his petition. There is no citation to any decision 

of the United States Supreme Court recognizing a new right that 

could be applied retroactively to Hale's conviction and sentence.

Hale relies solely on the Ohio Supreme Court's decision in State 

v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803. That decision 

was very narrowly tailored to apply to situations where a juvenile 

offender is being sentenced for aggravated murder pursuant to

R.C. §2929.03. Hale was sentenced for the offense of rape 

pursuant to R.C. §2907.02(A)(1)(b).

* * *

That being the case, Hale has wholly failed to demonstrate why 

any of the exceptions in R.C. §2953.23(A)(1) apply. A 

postconviction petition for relief that is not filed within the time 

period set forth in R.C. §2953.23, and which only raises issues 

relating to sentencing errors does not vest a trial court with 

jurisdiction to consider the same.

{¶ 5} Hale now appeals the trial court's decision, raising the following single 

assignment of error for review.

{¶ 6} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED THE 

STATE OF OHIO'S MOTION TO DISMISS THE DEFENDANT'S SECOND OR 

SUCCESSIVE PETITION FOR POSTCONVICTION RELIEF FILED DECEMBER 17, 2021.

{¶ 7} Hale argues the trial court erred by dismissing his second, successive petition 

for postconviction relief as untimely. To support this claim, Hale reiterates the same 

argument that he advanced previously in his postconviction relief petition he filed with the 

trial court on December 17, 2021. That is to say, Hale argues the rule espoused by the 

Ohio State Supreme Court in Patrick, that a trial court must separately consider the youth 

of a juvenile offender as a mitigating factor before imposing a life sentence for aggravated 

murder under R.C. 2929.03, even if that sentence includes eligibility for parole, applies 
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retroactively to his case, thereby rendering unconstitutional the mandatory, indefinite 10-

years-to-life prison sentence he received for raping the two-year-old victim in this case. We 

disagree.

{¶ 8} Hale's petition for postconviction relief was filed well beyond any applicable 

time period for filing such a petition set forth by either the current or former R.C. 2953.21, 

thus rendering it an untimely petition for postconviction relief. R.C. 2953.23(A)(1)(a)-(b)

provides certain narrow exceptions authorizing the trial court to allow for an untimely, 

successive postconviction relief petition.1 Hale's situation in this case, where he sought to 

have the Ohio Supreme Court's decision in Patrick applied retroactively to him, does not fit 

into any of those exceptions. This is because, "[w]hile R.C. 2953.23(A)[1][a] vests a 

common pleas court with authority to grant relief on an untimely petition when the petitioner 

asserts a claim based on a new state or federal right recognized by the United States 

Supreme Court, the statute provides no exception allowing an untimely petition to be 

granted based on a new decision of the Supreme Court of Ohio." (Emphasis deleted.) 

State v. Jarrett, 8th Dist. Cuyahoga No. 111659, 2023-Ohio-811, ¶ 19, discretionary appeal 

not allowed, 06/20/2023 Case Announcements, 2023-Ohio-1979, citing State v. Parker, 157 

Ohio St.3d 460, 2019-Ohio-3848, ¶ 2.

{¶ 9} This is also because, while R.C. 2953.23(A)(1)(b) permits a common pleas 

court to grant relief on an untimely petition where, but for constitutional error at trial, no 

reasonable factfinder would have found him guilty, or where, but for constitutional error at 

the sentencing hearing, no reasonable factfinder would have found him eligible for the death 

sentence, there must first be constitutional error under R.C. 2953.23(A)(1)(a). As noted 

1. A second, alternative exception is set forth in R.C. 2953.23(A)(2), which applies in certain circumstances 

where DNA testing was performed. However, as there is no indication that DNA testing was involved in this 

case, R.C. 2953.23(A)(2) has no application to this case.
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above, Hale has failed to demonstrate any constitutional error in this case. There is also 

no dispute that Hale was not sentenced to death, but was instead sentenced to a 

mandatory, indefinite sentence of 10-years-to-life in prison pursuant to R.C. 2907.02(B) and 

2929.13(F). This is in addition to the undisputed fact that nowhere within Hale's 

postconviction relief petition does Hale argue his actual innocence of the first-degree felony 

rape charge for which he was tried and ultimately convicted. It is only under those 

circumstances that the exception set forth under R.C. 2953.23(A)(1)(b) applies. See State 

v. Carter, 12th Dist. Clinton No. CA2006-03-010, 2006-Ohio-4205, ¶ 16 ("the plain language 

of R.C. 2953.23[A][1][b] extends only to trial error [where, but for constitutional error at trial, 

no reasonable factfinder would have found the petitioner guilty of the offense of which the 

petitioner was convicted,] and does not extend to sentencing errors, except those occurring 

within the capital punishment context").

{¶ 10} In so holding, we note that when faced with a similar issue to the case at bar, 

the Second District Court of Appeals concluded in State v. Wiesenborn, 2d Dist. 

Montgomery No. 29388, 2022-Ohio-3762, that the rule announced by the Ohio Supreme 

Court in Patrick was a procedural rule that does not apply retroactively, and that the offender 

had no legal right to have Patrick applied to his case because he had no appeal pending 

when the Ohio Supreme Court issued its decision in Patrick. Id. at ¶ 26, citing Ali v. State, 

104 Ohio St.3d 328, 2004-Ohio-6592, ¶ 6 ("[a] new judicial ruling may be applied only to 

cases that are pending on the announcement date"). The Eighth District Court of Appeals 

concluded the same in Jarrett, thus agreeing "with the Second District that the rule 

announced in Patrick is a procedural rule and does not apply retroactively." Id. at ¶ 24. In 

reaching this decision, the Eighth District expressly noted that, "as the law currently stands, 

Patrick does not apply retroactively." Id. at ¶ 17.
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{¶ 11} Just like the Eighth District before us, we also agree with the Second District 

that the rule announced in Patrick is a procedural rule and does not apply retroactively. 

Therefore, similar to the holdings expressed in Wiesenborn and Jarrett, because Hale had 

no direct appeal pending when the Ohio Supreme Court's decision in Patrick was decided,

Hale had no legal right to the application of Patrick to his case. That is assuming, of course, 

that Patrick had any application to Hale's case at all. This is because, rather than 

aggravated murder in violation of R.C. 2929.03, Hale was found guilty of first-degree felony 

rape with specification of force in violation of R.C. 2907.02(A)(1)(b). See generally State v. 

Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, ¶ 67-76 (setting forth 

several reasons why the Ohio Supreme Court's decision in Patrick may not extend beyond 

those cases where a juvenile offender is receiving a life sentence for aggravated murder 

under R.C. 2929.03), dismissing appeal as having been improvidently accepted, 168 Ohio 

St.3d 631, 2022-Ohio-1607. Accordingly, finding no error in the trial court's decision 

dismissing Hale's second, successive petition for postconviction relief as untimely, Hale's 

single assignment of error lacks merit and is overruled.

{¶ 12} Judgment affirmed.

HENDRICKSON and M. POWELL, JJ., concur.