State v. Sullivan

2012 Ohio 2873

• Court: Ohio Court of Appeals
• Decided: June 25, 2012
• Docket: 12-CA-14
• Status: Published

Opinion

[Cite as State v. Sullivan, 2012-Ohio-2873.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : Patricia A. Delaney, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 12-CA-14 : : CHAD E. SULLIVAN : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Licking County Court of Common Pleas Case No. 03-CR-163

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 25, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT CHAD E. SULLIVAN Prosecuting Attorney Inmate #439-879 Licking County, Ohio 16149 St. Rt. 104 20 South Second Street P.O. Box 7010 R.C.I. Newark, Ohio 43055 Chillicothe, Ohio 45601 [Cite as State v. Sullivan, 2012-Ohio-2873.]

Edwards, J.

{¶1} Appellant, Chad E. Sullivan, appeals a judgment of the Licking County

Common Pleas Court dismissing his motion to modify his sentence pursuant to Civ. R.

60(B)(4), (5) and (6). Appellee is the State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On August 1, 2003, appellant entered pleas of “no contest” to one count of

aggravated burglary (R.C. 2911.11(A)(2)), one count of aggravated robbery (R.C.

2911.01(A)(1)), two counts of kidnapping (R.C. 2905.01(A)(2)), one count of disrupting

public services, (R.C. 2909.04(A)(1), one count of grand theft of a motor vehicle (R.C.

2913.02(A)(1)), one count of grand theft of firearms (R.C. 2913.02(A)(1)), one count of

grand theft over $5,000 (R.C. 2913.02(A)(1)), and firearm specifications on eight of the

counts ( R.C. 2929.14(D) and R.C. 2941.145). Appellant did not file a direct appeal from

his conviction and/or sentence.

{¶3} On January 13, 2006, Appellant filed a Motion for Post-Conviction Relief

with the trial court pursuant to R.C. 2953.23(A)(1)(a) based on the United States

Supreme Court's holding in Blakely v. Washington (2004), 124 S.Ct. 2531. The trial

court overruled the motion and this Court affirmed the trial court’s decision. State v.

Sullivan, 5th Dist. No. 06-CA-33, 2006-Ohio-4060.

{¶4} On September 6, 2006, appellant filed a motion to vacate the judgment

pursuant to Civ. R. 60(B). This motion raised issues again associated with the Blakely

decision. The trial court denied the motion. An appeal to this Court was dismissed for

want of prosecution. Licking County App. Case No. 12-CA-14 3

{¶5} On July 12, 2011, appellant filed a motion to modify his sentence pursuant

to Civ. R. 60(B)(4), (5) and (6). He again raised issues associated with his aggregate

consecutive sentencing, citing this time to Apprendi v. New Jersey, 530 U.S. 466(2000),

a case that the United States Supreme Court relied on in the Blakely decision cited by

appellant in his earlier motions raising the same claims. The trial court overruled the

motion, finding that the motion, which the court treated as a petition for postconviction

relief, was untimely, and barred by res judicata, and that the trial court had previously

ruled on the merits that his claims associated with Apprendi and its progeny were

without merit.

{¶6} Appellant assigns one error on appeal:

{¶7} “THE TRIAL COURT ERRED AND DEPRIVED THE APPELLANT OF

DUE PROCESS OF LAW IN VIOLATION OF THE APPELLANT’S [SIC] FIFTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 AND 16 OF THE OHIO CONSTITUTION WHEN THE COURT

IMPOSE [SIC] MORE THAN ONE ADDITIONAL PRISON TERM ON AN OFFENDER

UNDER THE OHIO REVISED CODE §2929.14(D)(1)(a)(i), FOR FELONIES

COMMITTED AS PART OF THE SAME ACT OR TRANSACTION.”

{¶8} The trial court did not err in dismissing appellant’s motion. First, as noted

by the trial court, appellant’s motion was untimely. Regardless of how appellant

captioned the motion, his Civ. R. 60(B) motion was properly recast as a petition for

postconviction relief pursuant to R.C. 2953.21. See State v. Reynolds, 5th Dist. No. 09-

CA-13, 2009-Ohio-3998. The motion was not filed within 180 days as required by R.C.

2953.21(A)(2), and appellant did not demonstrate good cause for the late filing. Licking County App. Case No. 12-CA-14 4

{¶9} Further, appellant raised the same issues raised in two prior petitions for

postconviction relief. The first petition in which these issues were raised was

considered on the merits by the trial court and affirmed on the merits by this Court in

Sullivan, supra, 2006-Ohio-4060. These claims are therefore barred by res judicata.

{¶10} We note that appellant does not challenge either of these rulings by the

trial court, and argues solely the merits of his underlying petition. Appellant argues that

he received a disparate sentence from his co-defendants. However, nothing in the

record supports this claim. The remaining issues argued in appellant’s brief have

previously been considered by this Court on appeal from his first petition for

postconviction relief and rejected.

{¶11} The assignment of error is overruled.

{¶12} The judgment of the Licking County Common Pleas Court is affirmed.

By: Edwards, J.

Delaney, P.J. and

Farmer, J. concur

______________________________

JUDGES

JAE/r0423 [Cite as State v. Sullivan, 2012-Ohio-2873.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : CHAD E. SULLIVAN : : Defendant-Appellant : CASE NO. 12-CA-14

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to

appellant.

_________________________________