[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.
_________________________________
_________________________________
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JUDGES