Dunkle v. Hill (Slip Opinion) , 2021 Ohio 3835 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Dunkle v. Hill, Slip Opinion No. 2021-Ohio-3835.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2021-OHIO-3835DUNKLE, APPELLANT, v. HILL, WARDEN, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Dunkle v. Hill, Slip Opinion No. 2021-Ohio-3835.]
Habeas corpus—R.C. 2969.25—R.C. 2725.04—Petitioner failed to comply with
R.C. 2969.25(A), which requires an inmate who files a habeas corpus
petition in a court of appeals to attach an affidavit listing all state and
federal civil actions and appeals of civil actions that he has filed in the
previous five years—Petitioner’s complaint was not verified, which is
required under R.C. 2725.04—Court of appeals’ judgment dismissing
complaint affirmed.
(No. 2021-0353—Submitted August 3, 2021—Decided November 2, 2021.)
APPEAL from the Court of Appeals for Marion County, No. 9-20-37.
________________
Per Curiam.
{¶ 1} Appellant, David E. Dunkle, appeals the judgment of the Third
District Court of Appeals dismissing his complaint for a writ of habeas corpus
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against Lyneal Wainwright,1 the former warden of the Marion Correctional
Institution, at which Dunkle is an inmate. We affirm the judgment of the court of
appeals.
Background
{¶ 2} In September 1986, Dunkle was convicted in the Licking County
Court of Common Pleas of, among other offenses, four counts of complicity to
commit rape. He was sentenced to four consecutive terms of life imprisonment for
those offenses.
{¶ 3} Dunkle did not appeal his convictions and sentences because, he
alleges, the trial court and his counsel failed to inform him of his right to appeal.
Dunkle twice unsuccessfully tried to pursue a delayed appeal based on his claim
that he was not informed of his right to appeal. See State v. Dunkle, 5th Dist.
Licking No. 05-CA-37 (May 2, 2005); State v. Dunkle, 5th Dist. Licking No. 10-
CA-110 (Nov. 22, 2010). He also raised the same allegation in an untimely petition
for postconviction relief, which was dismissed. See State v. Dunkle, 5th Dist.
Licking No. 12-CA-80, 2013-Ohio-2299, ¶ 6-7, 11-12; see also State v. Dunkle, 5th
Dist. Licking No. 18-CA-86, 2019-Ohio-76, ¶ 16-20.
{¶ 4} In October 2020, Dunkle filed against the warden a complaint for a
writ of habeas corpus in the Third District, again alleging that he was not informed
of his right to appeal. The court of appeals granted the warden’s motion to dismiss.
3d Dist. Marion No. 9-20-37 (Feb. 25, 2021).
{¶ 5} Dunkle appealed to this court as of right.
Legal analysis
{¶ 6} R.C. 2969.25(C) provides that if an inmate who is filing a civil action
against a governmental employee seeks a waiver of the filing fee, then the inmate
must file an affidavit stating that he or she is seeking a waiver of the fee and an
1. The current warden of the Marion Correctional Institution, appellee, Leon Hill, is automatically
substituted as a party to this action under S.Ct.Prac.R. 4.06(B).
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January Term, 2021
affidavit of indigency. The affidavits must contain a statement of the balance in
the inmate’s account. Id. This requirement applies to habeas corpus actions filed
in a court of appeals. Fuqua v. Williams, 100 Ohio St.3d 211, 2003-Ohio-5533,
797 N.E.2d 982, ¶ 6. Failure to comply with R.C. 2969.25 is a ground for dismissal.
State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 422, 696 N.E.2d 594(1998). The court of appeals dismissed Dunkle’s complaint, in part because he
failed to file a certified statement of the balance in his inmate account.
{¶ 7} The first page of Dunkle’s habeas complaint indicated that the two
affidavits required under R.C. 2969.25(C) were included with the complaint, but
they are not attached to the copy of the complaint in the record before this court.
Therefore, based on the record, Dunkle arguably did not request a waiver of the
filing fee at all, in which case he was not required to file a certified statement of his
account balance. But if Dunkle did not seek a waiver of the filing fee, then he
should have paid the fee and his complaint is subject to dismissal for nonpayment
of the fee. See State ex rel. Hairston v. State, 10th Dist. Franklin No. 17AP-501,
2018-Ohio-104, ¶ 9, 15-19 (recommending that a habeas petition be dismissed
because the petitioner neither paid the filing fee nor filed a motion to proceed in
forma pauperis with supporting documentation); Wilson v. Miller, 7th Dist.
Belmont No. 12 BE 6, 2012-Ohio-1303, ¶ 13 (dismissing a habeas petition because
the petitioner had neither paid the filing fee nor attached the necessary
documentation to request a waiver of the fee).
{¶ 8} The warden points out that Dunkle’s habeas complaint also was not
verified, which is required under R.C. 2725.04. The failure to verify a complaint
for a writ of habeas corpus is a ground for dismissal. State ex rel. Ranzy v. Coyle,
81 Ohio St.3d 109, 110, 689 N.E.3d 563 (1998). Although the court of appeals did
not cite Dunkle’s failure to verify his complaint as a basis for its dismissal, we have
“plenary authority in extraordinary writ cases to consider [habeas petitions] as if
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they had been originally filed in this court.” Chari v. Vore, 91 Ohio St.3d 323, 327,
744 N.E.2d 763 (2001).
{¶ 9} In addition, Dunkle failed to comply with R.C. 2969.25(A), which
requires an inmate who files a habeas corpus petition in a court of appeals to attach
an affidavit listing all state and federal civil actions and appeals of civil actions that
he has filed in the previous five years. See also State ex rel. Dixon v. Bowerman,
156 Ohio St.3d 317, 2019-Ohio-716, 126 N.E.3d 1086, ¶ 4. Because Dunkle filed
his habeas complaint in the court of appeals, he was required to comply with the
requirements of R.C. 2969.25(A). See State ex rel. McDougald v. Greene, 155
Ohio St.3d 216, 2018-Ohio-4200, 120 N.E.3d 779, ¶ 8 (explaining that the
requirements of R.C. 2969.25 apply to a civil action or appeal against a
governmental entity or employee filed in the court of appeals, but not to actions
filed in this court). And dismissal is an appropriate disposition of an inmate’s
complaint that fails to comply with R.C. 2969.25(A). State ex rel. Ware v. Pureval,
160 Ohio St.3d 387, 2020-Ohio-4024, 157 N.E.3d 714, ¶ 5.
{¶ 10} Dunkle indicated in his affidavit that he had not filed any civil
actions or appeals of civil actions within the preceding five years. But as the warden
points out, Dunkle filed an appeal to this court of another habeas judgment in case
No. 2015-1685, Dunkle v. Dept. of Rehab. & Corr., on October 16, 2015, which
was within five years of when he filed the habeas complaint involved in this matter
on October 2, 2020.
{¶ 11} For all these reasons, we hold that the court of appeals correctly
dismissed Dunkle’s complaint for a writ of habeas corpus.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
David E. Dunkle, pro se.
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January Term, 2021
Dave Yost, Attorney General, and Jerri L. Fosnaught, Assistant Attorney
General, for appellee.
_________________
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