State v. Blacker ( 2011 )

[Cite as State v. Blacker, 2011-Ohio-570.]
COURT OF APPEALS
GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Patricia A. Delaney, J.
-vs-
Case No. 10 CA 30
NATHANIAL BLACKER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 04 CR 178
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 7, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL G. PADDEN NATHANIAL COLIN BLACKER
PROSECUTING ATTORNEY PRO SE
139 West 8th Street ROSS CORRECTIONAL INST.
Post Office Box 640 Post Office Box 7010
Cambridge, Ohio 43725 Chillicothe, Ohio 45601
Guernsey County, Case No. 10 CA 30 2
Wise, J.
{¶1} Appellant Nathanial Blacker appeals the decision of the Court of Common
Pleas, Guernsey County, denying several pro se postconviction motions. The relevant
facts leading to this appeal are as follows.
{¶2} On December 12, 2004, appellant was indicted by the Guernsey County
Grand Jury on two counts of Aggravated Robbery. Count One of the indictment
concerned the robbery of the Secrest Carryout Store. Count Two of the indictment
concerned the robbery of Plus One Pizza.
{¶3} On February 9, 2005, appellant filed a Suggestion of Incompetence. On
August 9, 2005, the court found appellant competent to stand trial, and the matter
proceeded to a jury trial.
{¶4} On August 25, 2005, the jury returned a verdict of guilty as to Count One
and a verdict of not guilty as to Count Two. On September 19, 2005 appellant was
ordered to serve a stated term of seven years in prison.
{¶5} On October 19, 2005, appellant filed a notice of appeal concerning his
conviction and sentence. On October 2, 2006, this Court rejected appellant's challenges
to his conviction, but reversed his sentence and remanded it to the trial court for a new
sentencing hearing consistent with the Ohio Supreme Court’s decision in State v. Foster
(2006), 109 Ohio St.3d 1.
{¶6} On December 26, 2006, the trial court re-sentenced appellant, pursuant to
the aforesaid appellate decision. At the re-sentencing hearing, appellant was again
sentenced to a seven-year prison term, and ordered to pay restitution in the amount of
Guernsey County, Case No. 10 CA 30 3
eighty dollars. The trial court further stated that appellant would be subject to post-
release control for a mandatory period of five years.
{¶7} Appellant again appealed, arguing that Ohio's post-Foster sentencing
scheme was unconstitutional. We rejected appellant’s arguments and affirmed his re-
sentencing. See State v. Blacker, Guernsey App.No. 2007-CA-3, 2007-Ohio-6103.
{¶8} On December 9, 2009, appellant filed a motion for “relief from unlawful
restraint of liberty.” The trial court denied same on February 26, 2010.
{¶9} On March 17, 2010, appellant filed a motion for relief from judgment, citing
Civ.R. 60(B). On May 5, 2010, appellant filed a motion for summary judgment, citing
Civ.R. 56. Furthermore, on May 17, 2010, appellant filed a pleading captioned “Judicial
Notice.”
{¶10} The trial court denied the three aforesaid motions/pleadings on June 15,
2010.
{¶11} Appellant filed a notice of appeal on July 8, 2010. He herein raises the
following two Assignments of Error:
{¶12} “I. THE COURT OF COMMON PLEAS, GUERNSEY COUNTY, OHIO,
ABUSED ITS DISCRETION BY DENYING VARIOUS MOTIONS/DOCUMENTS
WITHOUT ANY FINDINGS OF FACT OR CONCLUSIONS OF LAW.
{¶13} “II. THE COURT ABUSED ITS DISCRETION WHEN IT FAILED AND/OR
REFUSED TO CONSTRUE THE STATUTES IN HARMONY WITH THE COMMON
LAW.”
Guernsey County, Case No. 10 CA 30 4
I.
{¶14} In his First Assignment of Error, appellant contends the trial court
committed reversible error by failing to issue findings of fact and conclusions of law
regarding his postconviction motions claiming lack of court jurisdiction. We disagree.
{¶15} Appellant’s motions were chiefly based upon Civ.R. 56 and Civ.R. 60(B).
We recognize that Crim.R. 57(B) directs “[i]f no procedure is specifically prescribed by
rule, the court may proceed in any lawful manner not inconsistent with these rules of
criminal procedure, and shall look to the rules of civil procedure and to the applicable
law if no rule of criminal procedure exists.” However, appellant herein wholly fails to
articulate how a redress of a Civ.R. 56 summary judgment motion at this stage would
legally affect his criminal conviction and sentence. Similarly, “Civ.R. 60(B) is not the
appropriate vehicle for challenging criminal convictions. Civ.R. 60(B) motions are to be
treated as petitions for post-conviction relief and, as such, are subject to strict time
limitations for filing.” State v. Green, Franklin App.No. 08AP-718, 2009-Ohio-2149, ¶ 4,
citing State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545.
{¶16} Appellant’s First Assignment of Error is therefore overruled.
II.
{¶17} In his Second Assignment of Error, appellant appears to argue that the
trial court, in addressing his most recent postconviction motions, failed to apply statutory
in law accordance with common law.
{¶18} Appellant’s argument is based on his claim of a reservation of rights under
the Uniform Commercial Code. Pursuant to R.C. 1301.02(B), which is drawn from
corresponding subsections in U.C.C. 1-102, the underlying purposes of the R.C.
Guernsey County, Case No. 10 CA 30 5
Chapters 1301 through 1310 are “to simplify, clarify, and modernize the law governing
commercial transactions, *** to permit the continued expansion of commercial practices
through custom, usage, and agreement of the parties, *** [and] to make uniform the law
among the various jurisdictions.” Appellant herein presents no cognizable argument
regarding the applicability of the U.C.C. to his various challenges to his criminal
conviction and sentence. See App.R. 16(A)(7). This Court is aware that appellant is
proceeding pro se; however, “[w]hile insuring that pro se appellants * * * are afforded
the same protections and rights prescribed in the appellate rules, we likewise hold them
to the obligations contained therein.” State v. Wayt (Mar. 20, 1991), Tuscarawas App.
No. 90AP070045.
{¶19} Appellant’s Second Assignment of Error is therefore overruled.
{¶20} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas of Guernsey County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Delaney, J., concur.
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JUDGES
JWW/d 0110
Guernsey County, Case No. 10 CA 30 6
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
NATHANIAL BLACKER :
:
Defendant-Appellant : Case No. 10 CA 30
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Guernsey County, Ohio, is affirmed.
Costs assessed to appellant.
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JUDGES