State v. Nichols

Locher, J.

The narrow issue before us is whether a delayed appeal pursuant to App. R. 5(A) is available in a proceeding for postconviction relief. For the reasons set forth below we find no basis for such delayed appeal.

It is important to note that Nichols’ latest constitutional claims which ultimately resulted in the federal magistrate’s recommendation to grant the writ of habeas corpus were not presented to either the trial court or the court of appeals. Accordingly we will confine ourselves to the procedural question presented and make no attempt, in the interests of comity and federalism, to review the federal magistrate’s findings with respect to Nichols’ averred constitutional claims. See Stores Realty Co. v. Cleveland Bd. of Bldg. Standards (1975), 41 Ohio St. 2d 41 [70 O.O.2d 123]; Columbus v. Rogers (1975), 41 Ohio St. 2d 161 [70 O.O.2d 308]; Moats v. Metropolitan Bank of Lima (1974), 40 Ohio St. 2d 47 [69 O.O.2d 323].

To resolve the question before us some background is necessary. Postconviction relief proceedings in Ohio have historically been cognizable as *42quasi-civil. Thus, the doctrine of res judicata is applicable to postconviction relief proceedings. State v. Perry (1967), 10 Ohio St. 2d 175 [39 O.O.2d 189], paragraph eight of the syllabus. Moreover, res judicata has been most recently utilized to justify dismissal of postconviction relief proceedings where the issue in question was never raised on direct appeal from the original judgment and sentence. State v. Cole (1982), 2 Ohio St. 3d 112.

In the case sub judice, appellant raises constitutional issues de novo on appeal in a postconviction relief proceeding. Insofar as appellant’s claims have never been heard on appeal from the original judgment and conviction, the optimum forum for appellant’s arguments would be in a delayed appeal from the original judgment and conviction if so granted by the court of appeals. As we stated in paragraph nine of the syllabus in Perry, supra, and subsequently reaffirmed in Cole, supra, “a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment.” (Emphasis added.) By logical extension, postconviction relief is not available until such time as conventional appellate relief has been sought. Cf. State v. Gibson (1980), 69 Ohio App. 2d 91 [23 O.O.3d 130] (postconviction relief should be used for evidence dehors the record). Since the constitutional concerns of appellant were never raised in an appeal from the original judgment and conviction, there would, however, be no res judicata effect as to subsequent postconviction relief proceedings. Accordingly appellant has the avenue of filing a motion for a delayed appeal from the original judgment and conviction.

In the present case appellant seeks to have us allow a delayed appeal in postconviction relief proceedings as if App. R. 5(A) were applicable to such proceedings. We decline to endorse such a view.

R.C. 2953.23(B) is explicit in stipulating appeal may be had from an order denying or awarding postconviction relief “pursuant to section 2953.21.” Such an order is a final judgment and may be appealed pursuant to R.C. Chapter 2953. Although R.C. Chapter 2953 is a criminal chapter, nowhere does this chapter explicitly mandate the use of the Ohio Rules of Appellate Procedure as applicable to criminal cases. As we noted in State v. Milanovich (1975), 42 Ohio St. 2d 46, 49 [71 O.O.2d 26], “[ujnder R.C. 2953.21, an action for postconviction relief is a civil proceeding in which the prosecuting attorney represents the state as a party.” (Emphasis added.) See, also, State v. Harvey (1980), 68 Ohio App. 2d 170, 171 [22 O.O.3d 235].

It would be manifestly unreasonable to have a different type of procedural rule for each subsection and sentence of R.C. 2953.21 through 2953.23. The dictates of judicial economy as well as the need for viable and consistent application, make it necessary that a uniform procedural framework be adopted. As indicated, this framework is civil, not criminal, *43although by necessity postconviction relief proceedings admittedly have an impact on adjudicated felons.

We are mindful that commentators have viewed the evolution of postconviction relief in Ohio as having created a virtually futile review process. See 1 Anderson’s Ohio Criminal Practice and Procedure (1982) 545-546, at Section 47.1; Comment, The Post-Conviction Review Dilemma in Ohio (1983), 44 Ohio St. L. J. 537. To the extent we would encourage the expeditious disposition of “frivolous and interminable appeals from prisoners who have their freedom to gain and comparatively little to lose,” we would not deny such assertions. State v. Cole, supra, at 115; State v. Milanovich, supra, at 51. As we have indicated, however, the appellant herein can perfect his complaint through delayed appeal of his original conviction and judgment. This option hardly lends credence to assertions of procedural futility and supplies ample evidence that we do not seek to limit the legitimate assertion of constitutional error. We trust that appellant’s attempts at more viable means of redress will yield a full and fair review of his allegations of unconstitutionality within the established procedural framework.

Accordingly we hold a delayed appeal pursuant to App. R. 5(A) is not available in the appeal of a postconviction relief determination pursuant to R.C. 2953.23(B). Additionally, we hold that postconviction relief proceedings will be governed by the Ohio Rules of Appellate Procedure as applicable to civil actions.

The judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, Holmes and J. P. Celebrezze, JJ., concur. Celebrezze, C.J., concurs in judgment only. Koehler, J., dissents. C. Brown, J., dissents separately. Koehler, J., of the Twelfth Appellate District, sitting for W. Brown, J.