State v. Dunkle

2013 Ohio 2007

• Court: Ohio Court of Appeals
• Decided: May 9, 2013
• Docket: 13-CA-2
• Status: Published

Opinion

[Cite as State v. Dunkle, 2013-Ohio-2007.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 13-CA-2 DAVID DUNKLE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 86 CR 16341

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 9, 2013

APPEARANCES:

For Appellant: For Appellee:

DAVID DUNKLE, pro se KENNETH OSWALT No. 138-316 LICKING COUNTY PROSECUTOR Marion Correctional Institution 20 South Second St. P.O. Box 57 Newark, OH 43055 Marion, OH 43302 Licking County, Case No. 13-CA-2 2

Delaney, J.

{¶1} Appellant David Dunkle appeals from the December 24, 2012 Judgment

Entry of the Licking County Court of Common Pleas overruling his “Complaint for

Contempt of Court Order.” Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant's original conviction is

unnecessary to our disposition of this appeal. Appellant was convicted of multiple

counts of rape and sentenced to consecutive life sentences in the Licking County

Court of Common Pleas in 1986.

{¶3} In October 2010 appellant sought leave for a delayed appeal, which we

denied in Fifth District Court of Appeals, Licking County case number 10CA0110. The

docket of this case indicates the Ohio Supreme Court declined jurisdiction to hear the

appeal in Ohio Supreme Court case number 2010-2293.1

{¶4} Also in 2010, appellant filed a pro se “motion to suspend” his sentence,

which the trial court construed as a motion for judicial release and overruled.

Appellant sought reconsideration of that decision, which was denied. We dismissed

appellant’s appeal therefrom in State v. Dunkle, 5th Dist. No. 11-CA-42, 2011-Ohio-

6779 because the trial court’s decision was not a final appealable order and no

authority exists for a motion to reconsider a judgment of a trial court in a criminal case.

Id., 2011-Ohio-6779 at ¶ 9.

1 Neither the appellate case nor the Ohio Supreme Court case was assigned a webcite number. Licking County, Case No. 13-CA-2 3

{¶5} We note appellant presently has a separate pending appeal before this

Court which arose from the same underlying case but which is not related to or

consolidated with the instant appeal, Fifth District Court of Appeals, Licking County

case number 12-CA-2.

{¶6} The instant appeal arose from appellant’s May 17, 2012 pro se filing,

entitled “Complaint for Contempt of Court Order,” essentially arguing his original plea

agreement has been breached by the Parole Board. The trial court denied the motion

on December 24, 2012.

{¶7} Appellee was permitted to file its brief instanter and appellant filed a

reply.

{¶8} Appellant raises one Assignment of Error:

{¶9} “I. THE TRIAL COURT ABUSED THEIR DISCRETION WHEN

DENYING AN (sic) COMPLAINT FOR CONTEMPT OF COURT.”

I.

{¶10} The instant case comes to us on the accelerated calendar. App.R. 11.1

governs accelerated-calendar cases and states in pertinent part:

(E) Determination and judgment on appeal.

The appeal will be determined as provided by App.R. 11.1. It shall

be sufficient compliance with App.R. 12(A) for the statement of the

reason for the court’s decision as to each error to be in brief and

conclusionary form.

The decision may be by judgment entry in which case it will not be

published in any form. Licking County, Case No. 13-CA-2 4

{¶11} One of the most important purposes of the accelerated calendar is to

enable an appellate court to render a brief and conclusory decision more quickly than

in a case on the regular calendar where the briefs, facts, and legal issues are more

complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463

N.E.2d 655 (10th Dist.1983).

{¶12} This appeal will be considered with the above in mind.

{¶13} Appellant’s brief is extremely conclusory. Looking to the “Complaint for

Contempt of Court Order” filed in the trial court for elucidation, appellant complains of

a “breach of [his] plea agreement.” Appellant’s argument is not cognizable within the

meaning of contempt as set forth in Chapter 2705 of the Revised Code.

{¶14} In short, as a vehicle to attempt to have this matter reviewed, we find

appellant’s “complaint for contempt of court” fails on a substantive basis and is a legal

nullity. See, State v. Heddleson, 5th Dist No. 2011CA00178, 2011-Ohio-6875, ¶ 13.

The trial court therefore did not err in overruling the “complaint.” Licking County, Case No. 13-CA-2 5

{¶15} Appellant’s sole assignment of error is overruled and the judgment of the

Licking County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Hoffman, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. WILLIAN B. HOFFMAN

PAD:kgb [Cite as State v. Dunkle, 2013-Ohio-2007.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DAVID DUNKLE : : : Case No. 13-CA-2 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. WILLIAM B. HOFFMAN