[Cite as State v. Peters, 2019-Ohio-4617.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1201
Appellee Trial Court No. CR0201502276
v.
Brandon Peters DECISION AND JUDGMENT
Appellant Decided: November 8, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Brandon Peters, pro se.
SINGER, J.
{¶ 1} Appellant, Brandon Peters, appeals the August 24, 2018 judgment of the
Lucas County Court of Common Pleas denying his motion for relief from judgment. For
the following reasons, we affirm. {¶ 2} Appellant sets forth two assignments of error:
First Assignment of Error
Trial court erred and abused its discretion to the prejudice of the
appellant when it denied appellant’s Civil Rule 60(B)(5) motion for relief
from judgment or order when motion demonstrated that appellant was
entitle[d] to relief when (1) appellant had a meritorious defense or claim to
present if relief was granted [motion for relief p. 10], (2) [appellant was]
entitle[d] to relief under ground (5) [motion for relief p. 11] and (3) motion
was filed in a reasonable time [motion for relief p. 11] denying appellant
the equal protection and due process of laws as guaranteed in the
Fourteenth Amendment to the U.S. Constitution and Article I, Section 16,
the Ohio Constitution[.]
Second Assignment of Error
Trial court erred and abused its discretion to the prejudice of the
appellant when it violated Civ. R. 5(B)(2)(c) when it directed and ordered
the clerk of courts to provide service of its September 6, 2017 journal entry
and decision to appellant at the wrong address [journal entry 9/6/17, docket
9/7/17] effect[i]vely denying appellant the right to due process of laws and
the equal protection of laws as guaranteed in the Fourteenth Amendment to
the U.S. Constitution and Article I, Section 16 to the Ohio Constitution[.]
2. Background
{¶ 3} Appellant was indicted on one count of child endangering, a violation of
R.C. 2919.22(B)(1), (E)(1), and (E)(2)(d), after fracturing his infant son’s leg. At the
time of the offense, appellant was on community control for attempted rape. Thereafter,
appellant entered a plea of guilty to the charge pursuant to North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At the sentencing hearing, appellant
admitted violating his community control and was sentenced to prison for seven years on
the child endangering conviction and four years on the community control violation, to be
served consecutively. The court filed its judgment on January 26, 2016; appellant timely
appealed his sentence.
{¶ 4} On January 26, 2017, while appellant’s appeal was pending, appellant filed a
petition for postconviction relief in the trial court. The state filed a motion to dismiss or
for summary judgment. On September 6, 2017, the trial court issued an opinion and
judgment entry, denying appellant’s petition and granting the state’s motion.
{¶ 5} The trial court docket indicates the following. On September 7, 2017, the
clerk mailed a copy of the court’s judgment to appellant. On September 18, 2017, the
clerk received a request from appellant for a copy of the court’s docket; a copy of the
docket was mailed that day. On October 4, 2017, appellant filed a “Motion for New
Judgment Entry of Denial” of his petition arguing he never received the court’s
September 6, 2017 judgment. On October 10, 2017, the clerk noted “ordinary mail - no
service[,] return on ordinary mail from P.O. Box[,] endorsed - no mail receptacle * * *
3. Peters[,] Brandon.” The state opposed appellant’s motion for a new judgment entry, and
appellant filed a response. On November 29, 2017, the trial court denied appellant’s
motion, finding “[t]he record is clear that the requirements of notice pursuant to Civ.R.
58(B) were satisfied.”
{¶ 6} On March 9, 2018, we affirmed the trial court’s January 26, 2016 judgment.
See State v. Peters, 6th Dist. Lucas No. L-17-1011, 2018-Ohio-884.
{¶ 7} On March 14, 2018, appellant filed a motion for relief from judgment,
pursuant to Civ.R. 60(B), with the trial court, in which he sought relief from the court’s
September 6, 2017 judgment. Appellant argued he did not receive the court’s judgment
because the court ordered the clerk to send the judgment to the wrong address. On
August 6, 2018, the state responded to appellant’s motion. On August 24, 2018, the trial
court denied appellant’s motion for relief from judgment. Appellant timely appealed.
Assignments of Error
{¶ 8} We will address appellant’s assignments of error together.
{¶ 9} Appellant asserts the trial court erred in denying his motion for relief from
judgment, as he satisfied all of the requirements under Civ.R. 60(B)(5). Appellant further
argues the trial court violated Civ.R. 5 and 58 when it ordered the clerk to send the
September 6, 2017 judgment to the wrong address, and the clerk sent the judgment to the
wrong address.
{¶ 10} The state counters in cases where the civil rules of service were followed,
there is a rebuttable presumption of proper service. The state acknowledges, however,
4. that the trial court docket, on October 10, 2017, indicates the clerk received a returned
envelope addressed to appellant. The state contends case laws provides that if service is
not perfected pursuant to Civ.R. 58(B), then the time to appeal has not yet begun to run.
The state cites to several cases in support of its position, including State v. McKinney, 3d
Dist. Defiance No. 4-11-01, 2011-Ohio-3521, State v. Harris, 8th Dist. Cuyahoga No.
94186, 2010-Ohio-3617 and State v. Waver, 8th Dist. Cuyahoga No. 107502, 2019-Ohio-
1444.
Law
{¶ 11} A petition for postconviction relief is a collateral civil attack on a criminal
conviction. See State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). Thus,
the Ohio Rules of Civil Procedure apply.
{¶ 12} Civ.R. 58(B) provides:
When the court signs a judgment, the court shall endorse thereon a
direction to the clerk to serve upon all parties * * * notice of the judgment
and its date of entry upon the journal. Within three days of entering the
judgment upon the journal, the clerk shall serve the parties in a manner
prescribed by Civ.R. 5(B) and note the service in the appearance docket.
Upon serving the notice and notation of the service in the appearance
docket, the service is complete. The failure of the clerk to serve notice does
not affect the validity of the judgment or the running of the time for appeal
except as provided in App.R. 4(A).
5. {¶ 13} Civ.R. 5(B) states in relevant part:
(2) Service in General. A document is served under this rule by:
***
(c) mailing it to the person’s last known address by United States
mail, in which event service is complete upon mailing; * * *.
{¶ 14} App.R. 4(A) provides in pertinent part:
(1) Appeal From Order That Is Final Upon Its Entry. Subject to the
provisions of App.R. 4(A)(3), a party who wishes to appeal from an order
that is final upon its entry shall file the notice of appeal required by App.R.
3 within 30 days of that entry.
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[Cite as State v. Peters, 2019-Ohio-4617.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-18-1201
Appellee Trial Court No. CR0201502276
v.
Brandon Peters DECISION AND JUDGMENT
Appellant Decided: November 8, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.
Brandon Peters, pro se.
SINGER, J.
{¶ 1} Appellant, Brandon Peters, appeals the August 24, 2018 judgment of the
Lucas County Court of Common Pleas denying his motion for relief from judgment. For
the following reasons, we affirm. {¶ 2} Appellant sets forth two assignments of error:
First Assignment of Error
Trial court erred and abused its discretion to the prejudice of the
appellant when it denied appellant’s Civil Rule 60(B)(5) motion for relief
from judgment or order when motion demonstrated that appellant was
entitle[d] to relief when (1) appellant had a meritorious defense or claim to
present if relief was granted [motion for relief p. 10], (2) [appellant was]
entitle[d] to relief under ground (5) [motion for relief p. 11] and (3) motion
was filed in a reasonable time [motion for relief p. 11] denying appellant
the equal protection and due process of laws as guaranteed in the
Fourteenth Amendment to the U.S. Constitution and Article I, Section 16,
the Ohio Constitution[.]
Second Assignment of Error
Trial court erred and abused its discretion to the prejudice of the
appellant when it violated Civ. R. 5(B)(2)(c) when it directed and ordered
the clerk of courts to provide service of its September 6, 2017 journal entry
and decision to appellant at the wrong address [journal entry 9/6/17, docket
9/7/17] effect[i]vely denying appellant the right to due process of laws and
the equal protection of laws as guaranteed in the Fourteenth Amendment to
the U.S. Constitution and Article I, Section 16 to the Ohio Constitution[.]
2. Background
{¶ 3} Appellant was indicted on one count of child endangering, a violation of
R.C. 2919.22(B)(1), (E)(1), and (E)(2)(d), after fracturing his infant son’s leg. At the
time of the offense, appellant was on community control for attempted rape. Thereafter,
appellant entered a plea of guilty to the charge pursuant to North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). At the sentencing hearing, appellant
admitted violating his community control and was sentenced to prison for seven years on
the child endangering conviction and four years on the community control violation, to be
served consecutively. The court filed its judgment on January 26, 2016; appellant timely
appealed his sentence.
{¶ 4} On January 26, 2017, while appellant’s appeal was pending, appellant filed a
petition for postconviction relief in the trial court. The state filed a motion to dismiss or
for summary judgment. On September 6, 2017, the trial court issued an opinion and
judgment entry, denying appellant’s petition and granting the state’s motion.
{¶ 5} The trial court docket indicates the following. On September 7, 2017, the
clerk mailed a copy of the court’s judgment to appellant. On September 18, 2017, the
clerk received a request from appellant for a copy of the court’s docket; a copy of the
docket was mailed that day. On October 4, 2017, appellant filed a “Motion for New
Judgment Entry of Denial” of his petition arguing he never received the court’s
September 6, 2017 judgment. On October 10, 2017, the clerk noted “ordinary mail - no
service[,] return on ordinary mail from P.O. Box[,] endorsed - no mail receptacle * * *
3. Peters[,] Brandon.” The state opposed appellant’s motion for a new judgment entry, and
appellant filed a response. On November 29, 2017, the trial court denied appellant’s
motion, finding “[t]he record is clear that the requirements of notice pursuant to Civ.R.
58(B) were satisfied.”
{¶ 6} On March 9, 2018, we affirmed the trial court’s January 26, 2016 judgment.
See State v. Peters, 6th Dist. Lucas No. L-17-1011, 2018-Ohio-884.
{¶ 7} On March 14, 2018, appellant filed a motion for relief from judgment,
pursuant to Civ.R. 60(B), with the trial court, in which he sought relief from the court’s
September 6, 2017 judgment. Appellant argued he did not receive the court’s judgment
because the court ordered the clerk to send the judgment to the wrong address. On
August 6, 2018, the state responded to appellant’s motion. On August 24, 2018, the trial
court denied appellant’s motion for relief from judgment. Appellant timely appealed.
Assignments of Error
{¶ 8} We will address appellant’s assignments of error together.
{¶ 9} Appellant asserts the trial court erred in denying his motion for relief from
judgment, as he satisfied all of the requirements under Civ.R. 60(B)(5). Appellant further
argues the trial court violated Civ.R. 5 and 58 when it ordered the clerk to send the
September 6, 2017 judgment to the wrong address, and the clerk sent the judgment to the
wrong address.
{¶ 10} The state counters in cases where the civil rules of service were followed,
there is a rebuttable presumption of proper service. The state acknowledges, however,
4. that the trial court docket, on October 10, 2017, indicates the clerk received a returned
envelope addressed to appellant. The state contends case laws provides that if service is
not perfected pursuant to Civ.R. 58(B), then the time to appeal has not yet begun to run.
The state cites to several cases in support of its position, including State v. McKinney, 3d
Dist. Defiance No. 4-11-01, 2011-Ohio-3521, State v. Harris, 8th Dist. Cuyahoga No.
94186, 2010-Ohio-3617 and State v. Waver, 8th Dist. Cuyahoga No. 107502, 2019-Ohio-
1444.
Law
{¶ 11} A petition for postconviction relief is a collateral civil attack on a criminal
conviction. See State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). Thus,
the Ohio Rules of Civil Procedure apply.
{¶ 12} Civ.R. 58(B) provides:
When the court signs a judgment, the court shall endorse thereon a
direction to the clerk to serve upon all parties * * * notice of the judgment
and its date of entry upon the journal. Within three days of entering the
judgment upon the journal, the clerk shall serve the parties in a manner
prescribed by Civ.R. 5(B) and note the service in the appearance docket.
Upon serving the notice and notation of the service in the appearance
docket, the service is complete. The failure of the clerk to serve notice does
not affect the validity of the judgment or the running of the time for appeal
except as provided in App.R. 4(A).
5. {¶ 13} Civ.R. 5(B) states in relevant part:
(2) Service in General. A document is served under this rule by:
***
(c) mailing it to the person’s last known address by United States
mail, in which event service is complete upon mailing; * * *.
{¶ 14} App.R. 4(A) provides in pertinent part:
(1) Appeal From Order That Is Final Upon Its Entry. Subject to the
provisions of App.R. 4(A)(3), a party who wishes to appeal from an order
that is final upon its entry shall file the notice of appeal required by App.R.
3 within 30 days of that entry.
(3) Delay of Clerk’s Service in Civil Case. In a civil case, if the
clerk has not completed service of the order within the three-day period
prescribed in Civ.R. 58(B), the 30-day periods referenced in App.R.
4(A)(1) and 4(A)(2) begin to run on the date when the clerk actually
completes service.
{¶ 15} The tolling provision of App.R. 4(A) applies whenever a party has not been
properly served under Civ.R. 58. In re Anderson, 92 Ohio St.3d 63, 67, 748 N.E.2d 67
(2001).
{¶ 16} Civ.R. 60(B) provides that a court may relieve a party from a final
judgment on grounds of, inter alia, mistake, inadvertence, surprise, or excusable neglect.
6. {¶ 17} In Harris, 8th Dist. Cuyahoga No. 94186, 2010-Ohio-3617, Mr. Harris
filed a motion for relief from judgment in which he argued he failed to timely appeal
from the trial court’s judgment because the court failed to get him proper notice of the
judgment; the motion was denied. Id. at ¶ 5-6. On appeal, Mr. Harris requested that the
appellate court “order the trial court to vacate and reenter its order denying his petition
for postconviction relief so that he can appeal now.” Id. at ¶ 6. The appellate court ruled
the 30-day time period under App.R. 4(A) had not expired, or even begun to run, because
the trial court did not comply with Civ.R. 58(B), and therefore, Mr. Harris may timely
appeal without the judgment being reentered. Id. at ¶ 8-10. The appellate court
concluded Mr. Harris did not demonstrate the trial court’s judgment was the result of any
mistake, inadvertence, surprise or excusable neglect, and therefore, the court did not
abuse its discretion by denying the motion for relief from judgment. Id. at ¶ 10. See also
Waver, 8th Dist. Cuyahoga No. 107502, 2019-Ohio-1444 at ¶ 28-43.
Analysis
{¶ 18} Upon review, we find the trial court did not abuse its discretion in denying
appellant’s motion for relief from judgment, as the proper method for appellant to
challenge that judgment is an appeal, not a Civ.R. 60(B) motion.
{¶ 19} According to the trial court’s docket, the address appellant used on his
July 25, 2017 filing was: North Central Correctional Complex, 670 Marion-
Williamsport E, Post Office Box 1812, Marion, Ohio 43301. However, the court
indicated, on the September 6, 2017 judgment that appellant’s address was: North
7. Central Correctional Institute, 670 Marion-Williamsport E, Marion, Ohio 43302
(Emphasis added.). On September 7, 2017, the clerk mailed the judgment to appellant at:
N. Central Corr. Inst., 670 Marion-Williamsport E, Marion, Ohio 43302. On October 10,
2017, the clerk received returned mail for appellant.
{¶ 20} The record shows the clerk did not comply with Civ.R. 58(B), and did not
complete service of the trial court’s September 6, 2017 judgment. In order to complete
service, the clerk was required to “serve the parties in a manner prescribed by Civ.R.
5(B)” which included mailing the judgment to appellant’s “last known address.” The
record shows the clerk mailed the judgment to a wrong address and not appellant’s last
known address, as required by Civ.R. 5(B)(2)(c).
{¶ 21} Since service of the September 6, 2017 judgment was not complete, we
find App.R. 4(A)(3) applies, and the time for filing an appeal from that judgment has not
yet begun to run. Accordingly, appellant was not and is not prevented from filing a
timely appeal from the trial court’s September 6, 2017 judgment.
{¶ 22} In light of the foregoing, appellant’s assignments of error are not well-
taken.
{¶ 23} The judgment of the Lucas County Court of Common Pleas is affirmed.
Costs of this appeal are waived.
Judgment affirmed.
8. State v. Peters C.A. No. L-18-1201
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Gene A. Zmuda, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
9.