State v. Mann

2021 Ohio 554

• Court: Ohio Court of Appeals
• Decided: February 26, 2021
• Docket: 2020CA00131
• Status: Published

Opinion

[Cite as State v. Mann, 2021-Ohio-554.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, J. -vs- : : ERIC MANN, : Case No. 2020CA00131 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2020- MI-00113

JUDGMENT: Dismissed

DATE OF JUDGMENT: February 26, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO MARK F. GRAZIANI Prosecuting Attorney Graziani Law, LLC Stark County, Ohio P.O. Box 1158 Norton, Ohio 44203 By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South- Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2020CA00131 2

Baldwin, J.

{¶1} Defendant-appellant Eric Mann appeals from the August 25, 2020

Judgment Entry of the Stark County Court of Common Pleas denying his Motion for Relief

from Judgment pursuant to Civ.R. 60(B)(5).

STATEMENT OF THE FACTS AND CASE

{¶2} In 2000, appellant was convicted of one count of domestic violence under

R.C. 2919.25(A). On July 1, 2020, appellant filed a Petition for Relief from Federal and

State Firearms Disability. Pursuant to a Judgment Entry filed on July 14, 2020, the trial

court denied the petition.

{¶3} Appellant, on July 22, 2020, then filed a Motion for Relief from Judgment

under Civ.R. 60(B)(5). A hearing was held on August 24, 2020. The trial court, as

memorialized in a Judgment Entry filed on August 25, 2020, denied the motion. The trial

court found that domestic violence was a criminal charge that was not expungable.

{¶4} Appellant now appeals from the trial court’s August 25, 2020 Judgment

Entry, raising the following assignments of error on appeal:

{¶5} “I. THE TRIAL COURT ERRED BY FAILING TO CONTINUE THE

MATTER WHEN IT LEARNED AT TRIAL THAT THE PROSECUTOR HAD NEITHER

BEEN SERVED WITH THE INITIAL PLEADING NOR INVESTIGATED THE MATTER,

AS SPECIFICALLY REQUIRED BY THE LANGUAGE IN §2923.14(C).”

{¶6} “II. THE TRIAL COURT ERRED BY IMPROPERLY CONCLUDING THIS

ACTION, FILED UNDER §2923.14 RELIEF FROM WEAPONS DISABILITY, WAS AN

ATTEMPT TO “EXPUNGE” A DOMECTIC VIOLENCE (DV) CONVICTION, AND THEN

RULED FROM THIS WHOLLY-INCORRECT BASIS.” Stark County, Case No. 2020CA00131 3

{¶7} “III. THE TRIAL COURT ERRED BY IGNORING THE SUPREME COURT

OF OHIO’S GUIDANCE ON THE RESTORATION OF FIREARM’S RIGHTS, THE

SUPREME COURT’S GUIDE TO FIREARMS RETURN IN DOMESTIC VIOLENCE

CASES, UNEQUIVOCALLY DISCUSSING §2923.14 AS THE VEHICLE FOR RELIEF

FROM FIREARMS DISABILITY.”

{¶8} We must first determine whether or not this Court has jurisdiction to

consider appellant’s appeal. As is stated above, after the trial court denied his petition on

July 14, 2020, appellant filed a Motion for Relief from Judgment under Civ.R. 60(B)(5).

Appellant then filed a Notice of Appeal on September 11, 2020, appealing from the trial

court’s August 25, 2020 Judgment Entry denying such motion.

{¶9} However, it is well settled that Civ.R. 60(B) “is not available as

a substitute for a timely appeal * * * nor can the rule be used to circumvent or extend the

time requirements for an appeal.” Blasco v. Mislik, 69 Ohio St.2d 684, 686, 433 N.E.2d

612 (1982). “When a Civ.R. 60(B) motion is used as a substitute for a timely appeal, and

when the denial of that motion is subsequently appealed, the proper response is the

dismissal of the appeal.” Garrett v. Gortz, 8th Dist. Cuyahoga App. No. 90625, 2008–

Ohio–4369, at ¶ 14, citing State ex rel. Richard v. Cuyahoga Cty. Commrs., 89 Ohio St.3d

205, 2000-Ohio-135, 729 N.E.2d 755. Stark County, Case No. 2020CA00131 4

{¶10} Appellant, in the case sub judice, did not timely appeal from the trial court’s

July 14, 2020 Judgment Entry. Appellant clearly is attempting to use a Civ.R. 60(B)

motion as a substitute for a timely appeal from the trial court's July 14, 2020 Judgment

Entry.

{¶11} Appellant’s appeal is, therefore, dismissed as untimely.

By: Baldwin, P.J.

Gwin, J. and

Wise, Earle, J. concur.