[Cite as State v. Dunkle,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : DAVID DUNKLE : Case No. 12-CA-80 : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 86-16341

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: May 30, 2013

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KENNETH W. OSWALT DAVID DUNKLE, PRO SE LICKING COUNTY PROSECUTOR Inmate #R138-316 20 S. Second St., 4th Floor c/o Marion Correctional Institute Newark, OH 43055 P.O. Box 57 Marion, OH 43301 Delaney, J.

{¶1} Defendant-Appellant David Dunkle appeals the October 9, 2012

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 the 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 Crim.R. 32. We denied the motion in State v. Dunkle, 5th Dist. No. 05-CA-37.

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

grounds, which we denied in State v. Dunkle, 5th Dist. 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. No. 11-CA-42,

. 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. at ¶ 9.

{¶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 and Dunkle appealed in State v. Dunkle, 5th Dist. No. 13-CA-2. As of the date of the authoring of this opinion,

a decision has not been rendered in that appeal.

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

the trial court. Dunkle argued during his 1986 sentencing, the trial court failed to

comply with Crim.R. 32(B) and inform him of his rights to appeal. The trial court

considered Dunkle’s motion to be a petition for postconviction relief and denied the

petition as untimely.

{¶7} Dunkle now appeals the October 9, 2012 judgment entry, arguing this

Court should reverse the decision and remand the matter to the trial court for

resentencing. The resentencing, Dunkle argues, would allow him to file an appeal of

his original sentence.

ASSIGNMENT OF ERROR

{¶8} Dunkle raises one Assignment of Error:

{¶9} “TRIAL COURT ERRED IN NOT ADVISING OF RIGHT TO APPEAL

PURSUANT TO OHIO CRIMINAL RULE 32(B).”

ANALYSIS

{¶10} The trial court considered Dunkle’s “Motion to Correct Sentence” as a

petition for postconviction relief. In denying the motion on October 9, 2012, the trial

court in its judgment entry stated that it considered the motion to be untimely. R.C.

2953.21(A)(2) governs the time within which a petition for postconviction relief must be

filed:

(2) Except as otherwise provided in section 2953.23 of the Revised Code,

a petition under division (A)(1) of this section shall be filed no later than one hundred eighty 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 or, if the direct appeal involves a sentence of death, the date

on which the trial transcript is filed in the supreme court. If no appeal is

taken, except as otherwise provided in section 2953.23 of the Revised

Code, the petition shall be filed no later than one hundred eighty days

after the expiration of the time for filing the appeal.

{¶11} Dunkle, however, does not raise as error on appeal the trial court’s

decision to consider his motion as an untimely petition for postconviction relief. This

Court recently affirmed a trial court’s decision to find a petition for postconviction relief

as untimely where the defendant failed to raise that issue as error on appeal. In State v.

Millette, 5th Dist. No. 12-CA-0074,

, 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,

(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.”

{¶12} In the present case, we find the trial court’s finding the petition for

postconviction relief was untimely was an independent ground warranting the denial of

Dunkle’s petition. Dunkle does not raise this as error on appeal.

{¶13} Dunkle’s sole Assignment of Error is overruled.

CONCLUSION

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

By: Delaney, J.

Wise, P.J. and

Baldwin, J. concur.

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

HON. CRAIG R. BALDWIN

PAD:kgb IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

: STATE OF OHIO : : Plaintiff - Appellee : JUDGMENT ENTRY : : -vs- : : Case No. 12-CA-80 DAVID DUNKLE : : Defendant - Appellant : :

For the reasons stated in our accompanying Opinion on file, the judgment of the

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

HON. PATRICIA A. DELANEY

HON. JOHN W. WISE

HON. CRAIG R. BALDWIN