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Man convicted of murder nearly four decades ago loses another appeal
ANNIE YAMSON
Special to the Legal News
Published: February 11, 2016
The appeal of a man serving two 20-years-to-life sentences was recently overruled by the 7th District Court of Appeals.
A panel of three judges reviewed the case of James Fussell and concluded that the Monroe County Court of Common Pleas properly denied his petition for postconviction relief.
On appeal, Fussell claimed he was entitled to an evidentiary hearing on the petition and that his petition raised valid arguments regarding a parole board’s failure to grant his release from prison.
Court documents state that Fussell was convicted of two counts of aggravated murder in 1979 and then ordered to serve two consecutive prison terms of 20 years to life.
The convictions and sentences were affirmed on direct appeal and on reconsideration.
In 2014, Fussell filed a petition for postconviction relief, arguing that he was denied parole multiple times, therefore, violating his sentences.
The trial court denied the petition as untimely, a ruling that the court of appeals found compelling.
“A timely 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,” Judge Mary DeGenaro wrote on behalf of the appellate panel.
Court filings indicated that Fussell filed a direct appeal on June 6, 1979 and the trial transcript was filed on Dec. 5, 1979.
“More than 35 years have passed since the trial transcript was filed,” DeGenaro wrote, “Well beyond the 180-day filing requirement and Fussell made no attempt to explain the untimeliness of his petition.”
Consequently, the appellate panel held that the trial court lacked jurisdiction to consider the motion and properly overruled it.
Even if the trial court did have jurisdiction, the court of appeals held that it was never statutorily required to hold a hearing on the petition, rather, the lower court “plays a gatekeeping role as the whether a defendant will receive a hearing.”
And, overlooking “the untimeliness issue,” the reviewing court noted that the petition would still fail.
“There is no constitutional or inherent right to be conditionally released before the expiration of a valid sentence,” DeGenaro wrote, citing 1979’s Greenholtz v. Inmates of Nebraska Penal and Correctional Complex.
The court of appeals turned to well-worn judicial precedent in holding that “the decision to deny parole is not subject to judicial review” because “the decision whether and when to grant parole lies within the absolute discretion of the Ohio Adult Parole Authority.”
Finding no merit to Fussell’s assignments of error, the court of appeals affirmed the judgment of the Monroe County court.
Presiding Judge Gene Donofrio and Judge Carol Ann Robb concurred.
The case is cited State v. Fussell, 2016-Ohio-275.
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