[Cite as State v. Dunkle, 2019-Ohio-76.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
DAVID E. DUNKLE : Case No. 18-CA-86
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Court of Common Pleas, Case No.
86CR16341
JUDGMENT: Affirmed
DATE OF JUDGMENT: January 10, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM C. HAYES DAVID E DUNKLE, PRO SE
PAULA M. SAWYERS MARION CORRECTIONAL
20 South Second Street, Fourth Floor INSTITUTION
Newark, OH 43055 P.O. Box 57
Marion, OH 43301
Licking County, Case No. 18-CA-86 2
Wise, E., J.
{¶ 1} Defendant-appellant David Dunkle appeals the January 5, 2015 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 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 Criminal
Rule 32. We denied the motion. State v. Dunkle, 5th Dist. Licking No. 05-CA-37.
{¶ 4} In October of 2010, Dunkle sought leave for a delayed appeal on the same
grounds, which we also denied. State v. Dunkle, 5th Dist. Licking 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. Licking No. 11-CA-42, 2011-Ohio-6779. 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.
{¶ 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. In State v. Dunkle, we found the trial
Licking County, Case No. 18-CA-86 3
court did not err in overruling his complaint. 5th Dist. Licking No. 13-CA-2, 2013-Ohio-
2007.
{¶ 6} On September 4, 2012, Dunkle filed a Motion to Correct Sentence with the
trial court and argued that, during his 1986 sentencing, the trial court failed to comply with
Criminal Rule 32. Dunkle requested the trial court resentence him so that he could appeal
his original sentence. The trial court considered Dunkle's motion to be a petition for post-
conviction relief and denied the petition as untimely. We affirmed the trial court's judgment
in State v. Dunkle, 5th Dist. Licking No. 12-CA-80, 2013-Ohio-2299.
{¶ 7} On July 11, 2013, Dunkle filed a complaint with the Court of Claims of Ohio
alleging that the Ohio Department of Rehabilitation and Correction breached a plea
agreement he entered into with the State of Ohio. The Court of Claims granted ODRC's
motion to dismiss Dunkle's complaint. The Tenth District Court of Appeals affirmed the
trial court's decision in Dunkle v. Ohio Dept. of Rehabilitation and Correction, 10th Dist.
Franklin No. 13AP-923, 2014-Ohio-3046.
{¶ 8} On November 19, 2014, Dunkle filed a “Motion to Correct Sentence” with
the trial court, arguing that his sentencing entry contained an error in several counts in
that a statute section number was incorrect and the names of certain charges were
worded incorrectly. In his motion, Dunkle acknowledged that the correct section number
and wording were “lawfully correct” in other documents such as the indictment, plea of
guilty, and initial entry upon plea of guilty. The trial court set the matter for a non-oral
hearing on December 22, 2014. On January 5, 2015, the trial court issued a judgment
entry denying Dunkle's motion. The trial court considered Dunkle's motion to be a petition
for post-conviction relief and denied the petition as untimely. Dunkle appealed arguing
Licking County, Case No. 18-CA-86 4
this court should immediately void the judgment against him, vacate and reverse his
sentence, and release him from prison due to the errors in the sentencing. We affirmed
the trial court's decision. State v. Dunkle, 5th Dist. Licking No. 15-CA-5, 2015-Ohio-1530.
{¶ 9} On April 6, 2017, Dunkle filed a Motion to Arrest Judgment. The trial court
denied the motion on August 24, 2017. Dunkle filed a Motion to Correct Clerical Mistake
on September 18, 2017. The motion was denied on September 20, 2017.
{¶ 10} On June 11, 2018 Dunkle filed a Motion to Vacate or Set Aside Judgment
of Conviction and Sentence. The motion was denied on June 20, 2018.
{¶ 11} Dunkle then filed a Petition to Vacate or set Aside Judgment of Conviction
and Sentence on July 25, 2018. The trial court summarily dismissed the motion on August
23, 2018 as an untimely petition for post-conviction relief. Dunkle filed this appeal, and
the matter is now before this court for consideration. He raises three assignments of error
as follow:
I
{¶ 12} THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
RECOGNIZE APPELLANT’S VOID SENTENCE AND VACATE SENTENCE
ACCORDINGLY
II
{¶ 13} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO
MEET THE REQUIREMENTS OF OHIO RULES OF CRIMINAL PROCEDURE
11(C)(2)(A) AND (F) UNDER THE PLEA AGREEMENT PROCESS
Licking County, Case No. 18-CA-86 5
III
{¶ 14} THE TRIAL COURT ABUSED ITS DISCRETION IN CONVICTING THE
APPELLANT TO CHARGES IN WHICH THE STATUTORY LANGUAGE OR THE
ESSENTIAL ELEMENTS ARE ABSENT AND/OR OMITTED RESULTING IN PLAIN
ERROR, CRIMINAL RULE 52(B)
{¶ 15} We address Dunkle's assignments of error together.
{¶ 16} The trial court dismissed Dunkle's motion as an untimely petition for
postconviction relief. Pursuant to R.C. 2953.21(A)(2), a petition for postconviction relief
shall be filed no later than three hundred sixty-five 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. If a petition is untimely filed, the trial court is required to entertain the
petition only if appellant could meet the requirements of R.C. 2953.23(A) - the trial court
may not entertain the untimely petition for post-conviction relief “unless the petitioner
initially demonstrates * * * he was unavoidably prevented from discovering the facts
necessary for the claim for relief [.]” State v. Tolliver, 10th Dist. Franklin No. 14AP-170,
2014-Ohio-4824, 2014 WL 5493878, ¶ 18; R.C. 2953.23(A)(1)(a).
{¶ 17} Dunkle was convicted in 1989 making his petition grossly untimely. Further,
Dunkle's motion failed to demonstrate he was unavoidably prevented from discovering
the facts upon which he based his claims for relief – a void sentence due to alleged
sentencing irregularities and ineffective assistance of trial counsel.
{¶ 18} Moreover, instead of challenging the trial court's dismissal of his motion as
an untimely petition for postconviction relief here on appeal, Dunkle raises issues the trial
court never addressed, and we may therefore not consider.
Licking County, Case No. 18-CA-86 6
{¶ 19} We previously addressed this identical issue in State v. Dunkle, 5th Dist.
Licking No. 12-CA-80, 2013-Ohio-2299. In that matter, at paragraph 11 we found:
In State v. Millette, 5th Dist. No. 12-CA-0074, 2013-Ohio-1331, 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, 2001 WL 1561057 (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.”
Licking County, Case No. 18-CA-86 7
{¶ 20} This case is no different. The trial court's finding the petition for
postconviction relief was untimely was again, an independent ground warranting
the denial of Dunkle's petition, and Dunkle does not raise this as error on appeal.
It is therefore unnecessary to address Dunkle's arguments.
{¶ 21} The three assignments of error are overruled.
{¶ 22} The judgment of the Court of Common Pleas, Licking County, is
affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/rw