State v. Dunkle

2019 Ohio 76

• Court: Ohio Court of Appeals
• Decided: January 10, 2019
• Docket: 18-CA-86
• Status: Published

Opinion

[Cite as State v. Dunkle, 2019-Ohio-76.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : DAVID E. DUNKLE : Case No. 18-CA-86 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 86CR16341

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 10, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES DAVID E DUNKLE, PRO SE PAULA M. SAWYERS MARION CORRECTIONAL 20 South Second Street, Fourth Floor INSTITUTION Newark, OH 43055 P.O. Box 57 Marion, OH 43301 Licking County, Case No. 18-CA-86 2

Wise, E., J.

{¶ 1} Defendant-appellant David Dunkle appeals the January 5, 2015 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 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 Criminal

Rule 32. We denied the motion. State v. Dunkle, 5th Dist. Licking No. 05-CA-37.

{¶ 4} In October of 2010, Dunkle sought leave for a delayed appeal on the same

grounds, which we also denied. State v. Dunkle, 5th Dist. Licking 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. Licking 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.

{¶ 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. In State v. Dunkle, we found the trial Licking County, Case No. 18-CA-86 3

court did not err in overruling his complaint. 5th Dist. Licking No. 13-CA-2, 2013-Ohio-

2007.

{¶ 6} On September 4, 2012, Dunkle filed a Motion to Correct Sentence with the

trial court and argued that, during his 1986 sentencing, the trial court failed to comply with

Criminal Rule 32. Dunkle requested the trial court resentence him so that he could appeal

his original sentence. The trial court considered Dunkle's motion to be a petition for post-

conviction relief and denied the petition as untimely. We affirmed the trial court's judgment

in State v. Dunkle, 5th Dist. Licking No. 12-CA-80, 2013-Ohio-2299.

{¶ 7} On July 11, 2013, Dunkle filed a complaint with the Court of Claims of Ohio

alleging that the Ohio Department of Rehabilitation and Correction breached a plea

agreement he entered into with the State of Ohio. The Court of Claims granted ODRC's

motion to dismiss Dunkle's complaint. The Tenth District Court of Appeals affirmed the

trial court's decision in Dunkle v. Ohio Dept. of Rehabilitation and Correction, 10th Dist.

Franklin No. 13AP-923, 2014-Ohio-3046.

{¶ 8} On November 19, 2014, Dunkle filed a “Motion to Correct Sentence” with

the trial court, arguing that his sentencing entry contained an error in several counts in

that a statute section number was incorrect and the names of certain charges were

worded incorrectly. In his motion, Dunkle acknowledged that the correct section number

and wording were “lawfully correct” in other documents such as the indictment, plea of

guilty, and initial entry upon plea of guilty. The trial court set the matter for a non-oral

hearing on December 22, 2014. On January 5, 2015, the trial court issued a judgment

entry denying Dunkle's motion. The trial court considered Dunkle's motion to be a petition

for post-conviction relief and denied the petition as untimely. Dunkle appealed arguing Licking County, Case No. 18-CA-86 4

this court should immediately void the judgment against him, vacate and reverse his

sentence, and release him from prison due to the errors in the sentencing. We affirmed

the trial court's decision. State v. Dunkle, 5th Dist. Licking No. 15-CA-5, 2015-Ohio-1530.

{¶ 9} On April 6, 2017, Dunkle filed a Motion to Arrest Judgment. The trial court

denied the motion on August 24, 2017. Dunkle filed a Motion to Correct Clerical Mistake

on September 18, 2017. The motion was denied on September 20, 2017.

{¶ 10} On June 11, 2018 Dunkle filed a Motion to Vacate or Set Aside Judgment

of Conviction and Sentence. The motion was denied on June 20, 2018.

{¶ 11} Dunkle then filed a Petition to Vacate or set Aside Judgment of Conviction

and Sentence on July 25, 2018. The trial court summarily dismissed the motion on August

23, 2018 as an untimely petition for post-conviction relief. Dunkle filed this appeal, and

the matter is now before this court for consideration. He raises three assignments of error

as follow:

I

{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO

RECOGNIZE APPELLANT’S VOID SENTENCE AND VACATE SENTENCE

ACCORDINGLY

II

{¶ 13} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO

MEET THE REQUIREMENTS OF OHIO RULES OF CRIMINAL PROCEDURE

11(C)(2)(A) AND (F) UNDER THE PLEA AGREEMENT PROCESS Licking County, Case No. 18-CA-86 5

III

{¶ 14} THE TRIAL COURT ABUSED ITS DISCRETION IN CONVICTING THE

APPELLANT TO CHARGES IN WHICH THE STATUTORY LANGUAGE OR THE

ESSENTIAL ELEMENTS ARE ABSENT AND/OR OMITTED RESULTING IN PLAIN

ERROR, CRIMINAL RULE 52(B)

{¶ 15} We address Dunkle's assignments of error together.

{¶ 16} The trial court dismissed Dunkle's motion as an untimely petition for

postconviction relief. Pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief

shall be filed no later than three hundred sixty-five 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. If a petition is untimely filed, the trial court is required to entertain the

petition only if appellant could meet the requirements of R.C. 2953.23(A) - the trial court

may not entertain the untimely petition for post-conviction relief “unless the petitioner

initially demonstrates * * * he was unavoidably prevented from discovering the facts

necessary for the claim for relief [.]” State v. Tolliver, 10th Dist. Franklin No. 14AP-170,

2014-Ohio-4824, 2014 WL 5493878, ¶ 18; R.C. 2953.23(A)(1)(a).

{¶ 17} Dunkle was convicted in 1989 making his petition grossly untimely. Further,

Dunkle's motion failed to demonstrate he was unavoidably prevented from discovering

the facts upon which he based his claims for relief – a void sentence due to alleged

sentencing irregularities and ineffective assistance of trial counsel.

{¶ 18} Moreover, instead of challenging the trial court's dismissal of his motion as

an untimely petition for postconviction relief here on appeal, Dunkle raises issues the trial

court never addressed, and we may therefore not consider. Licking County, Case No. 18-CA-86 6

{¶ 19} We previously addressed this identical issue in State v. Dunkle, 5th Dist.

Licking No. 12-CA-80, 2013-Ohio-2299. In that matter, at paragraph 11 we found:

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.” Licking County, Case No. 18-CA-86 7

{¶ 20} This case is no different. The trial court's finding the petition for

postconviction relief was untimely was again, an independent ground warranting

the denial of Dunkle's petition, and Dunkle does not raise this as error on appeal.

It is therefore unnecessary to address Dunkle's arguments.

{¶ 21} The three assignments of error are overruled.

{¶ 22} The judgment of the Court of Common Pleas, Licking County, is

affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.

EEW/rw