State v. McCarley

2024 Ohio 2050

• Court: Ohio Court of Appeals
• Decided: May 29, 2024
• Docket: 30922
• Status: Published

Opinion

[Cite as State v. McCarley, 2024-Ohio-2050.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 30922

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE WILLARD MCCARLEY COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 04 05 1674(A)

DECISION AND JOURNAL ENTRY

Dated: May 29, 2024

CARR, Judge.

{¶1} Defendant-Appellant Willard McCarley appeals the judgment of the Summit

County Court of Common Pleas denying his motion to vacate pursuant to Civ.R. 60(B)(5). This

Court affirms.

I.

{¶2} This matter has a lengthy procedural history that began after the mother of

McCarley’s son was found dead in her apartment in 1992. In 2004, McCarley was arrested and

charged with aggravated murder. See State v. McCarley, 9th Dist. Summit No. 28657, 2018-Ohio-

4685, ¶ 2, 6. A jury found him guilty, but his conviction was reversed on appeal. Id. at ¶ 6.

{¶3} The matter proceeded to a second jury trial. McCarley was again found guilty, and

this Court affirmed his conviction on appeal. Id. at ¶ 7. After pursuing relief in federal courts,

McCarley was granted a third trial. See id. at ¶ 8-9. The jury found McCarley guilty, and this

Court affirmed his conviction. See id. at ¶ 1, 9-10. 2

{¶4} In January 2019, McCarley filed a petition for post-conviction relief. The State

opposed the motion, asserting it should be dismissed. In April 2020, the trial court denied the

petition and granted the State’s motion to dismiss. In May 2023, McCarley appealed the ruling to

this Court. However, shortly thereafter, he filed a motion to dismiss the appeal, which this Court

granted.

{¶5} In August 2023, McCarley filed a motion for relief from judgment pursuant to

Civ.R. 60(B)(5) with respect to the ruling on his petition for post-conviction relief. In the motion,

McCarley argued that the ruling on the petition for post-conviction relief was sent via email and

inadvertently went unopened. While McCarley asserted that an affidavit establishing the same

accompanied his motion, there were no attachments to McCarley’s motion. McCarley maintained

that his counsel did not discover the decision until February 2023. The State opposed the motion.

In October 2023, the trial court issued a decision denying McCarley’s motion. It concluded it was

untimely and that McCarley failed to demonstrate that he had a meritorious defense.

{¶6} McCarley has appealed, raising a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY NOT GRANTING [MCCARLEY’S] MOTION FOR RELIEF FROM JUDGMENT[.]

{¶7} McCarley argues in his sole assignment of error that the trial court erred in denying

his Civ.R. 60(B)(5) motion to vacate the entry denying his petition for post-conviction relief.

{¶8} “We review a trial court’s decision applying Civ.R. 60(B)(5) for an abuse of

discretion, which signifies not just an error in law or judgment, but an unreasonable, arbitrary, or

unconscionable attitude on the part of the trial court.” State v. Dovala, 9th Dist. Lorain No.

14CA010692, 2016-Ohio-1349, ¶ 6. “Civ.R. 60(B)(5) is a catch-all provision reflecting the 3

inherent power of a court to relieve a person from the unjust operation of a judgment that must be

invoked by substantial grounds.” (Internal quotations and citations omitted.) Id. “The rule

encompasses situations that involve unusual circumstances that, at the time of the judgment, were

not disclosed to the parties, which inherently affect the accuracy and reliability of the judgment at

issue. Unusual circumstances of this nature include fraud upon the court, judicial bias, and errors

or omissions that transcend a mere error in judgment.” (Internal quotations and citations omitted.)

Id. It is also well established that “a motion filed pursuant to Civ.R. 60(B) may not be used as a

substitute for appeal.” State v. Roberson, 9th Dist. Lorain No. 23CA011971, 2024-Ohio-118, ¶ 9.

{¶9} In order to prevail on a motion for relief from judgment under Civ.R. 60(B), the

movant must demonstrate that the movant has met each of three requirements as set forth by the

Supreme Court of Ohio in GTE Automatic Electric, Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146

(1976). Those requirements are:

(1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceeding was entered or taken.

Id. at paragraph two of the syllabus. “If the moving party fails to prove any of these three elements,

then the trial court must deny the motion, otherwise it is an abuse of discretion.” Knox v. Dorsey,

9th Dist. Summit No. 30509, 2023-Ohio-2151, ¶ 9.

{¶10} Here, the trial court concluded that McCarley’s motion was not filed within a

reasonable time. “[T]he issue of what constitutes reasonable time for filing the motion under

Civ.R. 60(B) depends upon the facts of the case[.]” Smith v. Smith, 9th Dist. Summit No. 28961,

2019-Ohio-129, ¶ 17. “Nonetheless, [a] movant must offer some operative facts or evidentia[ry] 4

material demonstrating the timeliness of his or her motion.” (Internal quotations and citations

omitted.) Id.

{¶11} The trial court’s entry dismissing the petition for post-conviction relief was filed

April 17, 2020. McCarley did not file his motion for relief from judgment until August 22, 2023,

over three years later. While McCarley claims his counsel was unaware of the ruling on the

petition for post-conviction relief until February 2023, McCarley submitted no documentation in

support of that argument, despite claiming that it was attached to his motion. Further, McCarley

did not seek relief from the judgment until six months after learning of this issue and offered the

trial court no explanation for that delay. See Haley v. Haley, 9th Dist. Summit No. 20720, 2002

WL 701937, *3 (Apr. 24, 2002), quoting Youssefi v. Youssefi, 81 Ohio App.3d 49, 53 (9th

Dist.1991) (“In the absence of any explanation for the delay in filing the Civ.R. 60(B) motion, the

movant has failed to meet its burden of establishing the timeliness of the motion.”).

{¶12} Overall, even assuming that McCarley’s motion was properly brought pursuant to

Civ.R. 60(B)(5), we cannot say that McCarley has demonstrated that the trial court erred in

concluding that McCarley’s motion was not filed within a reasonable time. Thus, McCarley has

likewise not demonstrated that the trial court abused its discretion in denying his motion.

McCarley’s assignment of error is overruled.

III.

{¶13} McCarley’s assignment of error is overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal. 5

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

SUTTON, P. J. HENSAL, J. CONCUR.

APPEARANCES:

WESLEY C. BUCHANAN, Attorney at Law, for Appellant.

ELLIOT KOLKOVICH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant Prosecuting Attorney, for Appellee.