State v. Dunkle , 2013 Ohio 2299 ( 2013 )

[Cite as State v. Dunkle, 2013-Ohio-2299.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
DAVID DUNKLE : Case No. 12-CA-80
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court
of Common Pleas, Case No. 86-16341
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 30, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT DAVID DUNKLE, PRO SE
LICKING COUNTY PROSECUTOR Inmate #R138-316
20 S. Second St., 4th Floor c/o Marion Correctional Institute
Newark, OH 43055 P.O. Box 57
Marion, OH 43301
Delaney, J.
{¶1} Defendant-Appellant David Dunkle appeals the October 9, 2012
judgment entry of the Licking County Court of Common Pleas. Plaintiff-Appellee is the
State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying Dunkle’s original conviction is
unnecessary to our disposition of this appeal. In 1986, Dunkle was convicted of
multiple counts of rape and sentenced to consecutive life sentences in the Licking
County Court of Common Pleas.
{¶3} In 2005, Dunkle filed a pro se motion to file a delayed appeal. He
argued the trial court and counsel failed to advise him of his right to appeal, pursuant
to Crim.R. 32. We denied the motion in State v. Dunkle, 5th Dist. No. 05-CA-37.
{¶4} In October 2010, Dunkle sought leave for a delayed appeal on the same
grounds, which we denied in State v. Dunkle, 5th Dist. No. 10-CA-110. Also in 2010,
Dunkle filed a pro se “Motion to Suspend” his sentence with the trial court, which the
trial court construed as a motion for judicial release and overruled. Dunkle sought
reconsideration of that decision, which was denied. We dismissed Dunkle’s appeal
therefrom in State v. Dunkle, 5th Dist. No. 11-CA-42, 2011-Ohio-6779. We found the
trial court’s decision was not a final appealable order and no authority exists for a
motion to reconsider a judgment of the trial court in a criminal case. Id. at ¶ 9.
{¶5} On May 17, 2012, Dunkle filed a pro se “Complaint for Contempt of Court
Order” with the trial court. In his motion, he argued the Parole Board breached his
original plea agreement. The trial court denied the motion and Dunkle appealed in
State v. Dunkle, 5th Dist. No. 13-CA-2. As of the date of the authoring of this opinion,
a decision has not been rendered in that appeal.
{¶6} On September 4, 2012, Dunkle filed a Motion to Correct Sentence with
the trial court. Dunkle argued during his 1986 sentencing, the trial court failed to
comply with Crim.R. 32(B) and inform him of his rights to appeal. The trial court
considered Dunkle’s motion to be a petition for postconviction relief and denied the
petition as untimely.
{¶7} Dunkle now appeals the October 9, 2012 judgment entry, arguing this
Court should reverse the decision and remand the matter to the trial court for
resentencing. The resentencing, Dunkle argues, would allow him to file an appeal of
his original sentence.
ASSIGNMENT OF ERROR
{¶8} Dunkle raises one Assignment of Error:
{¶9} “TRIAL COURT ERRED IN NOT ADVISING OF RIGHT TO APPEAL
PURSUANT TO OHIO CRIMINAL RULE 32(B).”
ANALYSIS
{¶10} The trial court considered Dunkle’s “Motion to Correct Sentence” as a
petition for postconviction relief. In denying the motion on October 9, 2012, the trial
court in its judgment entry stated that it considered the motion to be untimely. R.C.
2953.21(A)(2) governs the time within which a petition for postconviction relief must be
filed:
(2) Except as otherwise provided in section 2953.23 of the Revised Code,
a petition under division (A)(1) of this section shall be filed no later than
one hundred eighty 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 or
adjudication or, if the direct appeal involves a sentence of death, the date
on which the trial transcript is filed in the supreme court. If no appeal is
taken, except as otherwise provided in section 2953.23 of the Revised
Code, the petition shall be filed no later than one hundred eighty days
after the expiration of the time for filing the appeal.
{¶11} Dunkle, however, does not raise as error on appeal the trial court’s
decision to consider his motion as an untimely petition for postconviction relief. This
Court recently affirmed a trial court’s decision to find a petition for postconviction relief
as untimely where the defendant failed to raise that issue as error on appeal. In State v.
Millette, 5th Dist. No. 12-CA-0074, 2013-Ohio-1331, the defendant filed with the trial
court a pro se “Motion to Correct Illegal Sentence.” The trial court considered the
motion to be an untimely petition for postconviction relief and denied the motion on the
basis of res judicata. Id. at ¶ 6. On appeal, the defendant argued he was illegally
imprisoned for allied offenses of similar import and was denied due process by the trial
court’s failure to consider the illegality of his sentence. Id. at ¶ 8. He did not assign as
error the trial court’s decision to consider his motion as a petition for postconviction
relief. We affirmed the trial court’s decision for the defendant’s failure to raise the
decision as error. Our decision in Millette is in accord with State v. Mong, 5th Dist. No.
01-CA-64, 2001 WL 1561057 (Dec. 6, 2001), wherein we held: “Upon review of
appellant's assignment of error, appellant does not argue or allege error in the trial
court's dismissing the Petition as being untimely. Accordingly, we find it unnecessary
to address the merits of appellant's arguments inasmuch as the trial court's finding the
Petition was untimely filed is an independent ground warranting dismissal of
appellant's Petition.”
{¶12} In the present case, we find the trial court’s finding the petition for
postconviction relief was untimely was an independent ground warranting the denial of
Dunkle’s petition. Dunkle does not raise this as error on appeal.
{¶13} Dunkle’s sole Assignment of Error is overruled.
CONCLUSION
{¶14} The judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.
Wise, P.J. and
Baldwin, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN
PAD:kgb
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 12-CA-80
DAVID DUNKLE :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN