[Cite as State v. Scott, 2023-Ohio-1184.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2022-07-012
: OPINION
- vs - 4/10/2023
:
CHRISTOPHER L. SCOTT, :
Appellant. :
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
Case No. 12 CR 010970
Martin P. Votel, Preble County Prosecuting Attorney, and Kathryn M. West, Assistant
Prosecuting Attorney, for appellee.
Christopher L. Scott, pro se.
BYRNE, J.
{¶1} Christopher Scott appeals from a decision of the Preble County Court of
Common Pleas denying his "Motion to [Vacate] and [Set Aside] Sentence Pursuant to Civil
Rule 60(B)(5)."1 For the reasons that follow, we affirm the trial court's denial of that motion,
though we do so for different reasons than those stated by the trial court.
1. The bracketed text corrects spelling and spacing errors in the original.
Preble CA2022-07-012
I. Procedural and Factual Background
{¶2} In 2012, a Preble County grand jury indicted Scott on eight counts, consisting
of three counts of first-degree felony rape, one count of sexual battery, three counts of gross
sexual imposition, and one count of importuning. All but the importuning count included
sexually violent predator specifications. The indictment followed Scott's admission to law
enforcement that he sexually abused his stepdaughter over the course of multiple years.
{¶3} Scott and the state subsequently entered into a plea agreement in which Scott
agreed to plead guilty to one count of rape, one count of sexual battery, two counts of gross
sexual imposition, and one count of importuning. In exchange, the state agreed to dismiss
the remaining charges as well as all the sexually violent predator specifications. Scott and
the state also agreed on a sentence of ten years to life in prison for rape, eight years for
sexual battery, and five years each for the two gross sexual imposition and importuning
offenses. The parties further agreed that the various sentences imposed by the trial court
should be served concurrently, for an aggregate sentence of ten years to life. The trial court
accepted Scott's guilty pleas and imposed the agreed upon sentence. Scott did not directly
appeal his conviction.
{¶4} In 2016, Scott filed a motion to correct a void sentence, which the trial court
denied. Scott appealed that decision out-of-time, and then filed a motion with this court for
leave to file a delayed appeal of that decision. We denied Scott's motion to file a delayed
appeal. State v. Scott, 12th Dist. Preble No. CA2016-08-008 (Sep. 21, 2016) (Entry
Denying Motion for Delayed Appeal).
{¶5} In 2018, Scott moved to withdraw his guilty plea. The trial court denied that
motion as well. Scott timely appealed. We affirmed the denial of Scott's motion to withdraw
his guilty plea but remanded for the issuance of a nunc pro tunc sentencing entry to reflect
that Scott would be subject to a mandatory period of postrelease control should he ever be
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released from prison. State v. Scott, 12th Dist. Preble No. CA2018-10-015, 2019-Ohio-
1292, ¶ 41.
{¶6} In 2022—ten years after his guilty plea and sentencing—Scott filed a "Motion
to [Vacate] and [Set Aside] Sentence Pursuant to Civil Rule 60(B)(5)." In the motion, Scott
argued that his plea agreement was invalid because he was fraudulently induced to enter
it. The trial court denied the motion, stating:
It is not necessary for the Court to address the merits of
Defendant's motion because he is seeking relief in a criminal
case under the authority granted the Court under the Civil Rules.
The Civil Rules do not apply to criminal cases and the Court
lacks the authority to grant the relief the Defendant seeks under
Civil Rule 60(B). Consequently, Defendant's motion is denied.
Scott appealed, raising one assignment of error.
II. Law and Analysis
{¶7} Scott's assignment of error states:
{¶8} THE TRIAL COURT REFUSED TO ADDRESS THE IMPOSSIBILITY OF
PERFORMANCE IS AN AFFIRMATIVE DEFENSE TO A BREACH OF CONTRACT CLAIM.
IMPOSSIBILITY OF PERFORMANCE OCCURS WHERE, AFTER THE CONTRACT IS
ENTERED INTO, AN UNFORESEEN EVENT ARISES RENDERING IMPOSSIBLE THE
PERFORMANCE OF ONE OF THE CONTRACTING PARTIES. PERFORMANCE MAY
BE IMPRACTICABLE BECAUSE IT WILL INVOLVE A RISK OF INJURY TO PERSON OR
PROPERTY THAT IS DISPROPORTIONATE TO THE ENDS TO BE ATTAINED BY
PERFORMANCE. IMPRACTICABILITY MEANS MORE THAN IMPRACTICALITY. A
MERE CHANGE IN THE DEGREE OF DIFFICULTY OR EXPENSE DOES NOT AMOUNT
TO IMPRACTICABILITY. A PARTY IS EXPECTED TO USE REASONABLE EFFORTS TO
SURMOUNT OBSTACLES TO PERFORMANCE, AND PERFORMANCE IS ONLY
IMPRACTICABLE IF IT IS SO IN SPITE OF SUCH EFFORTS.
{¶9} Scott's appellate brief is difficult to follow. He appears to argue that in 2012
the state misled him into agreeing to the plea deal, which he characterizes as an adhesion
contract. Specifically, Scott argues that the state told him that he was facing a life sentence
without the possibility of parole, when in fact this sentence was not an available sentence
with respect to the crimes with which he was charged. Scott argues that the plea agreement
was a contract and that performance of this contract was "impossible" because the state
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misrepresented the terms of the contract. Likewise, he argues that the plea agreement
"contract" was not enforceable because it was "unconscionable." Scott also contends that
"there [was] no statutory mandated ten-to-life sentence" for his rape conviction.2
{¶10} The trial court denied Scott's "Motion to [Vacate] and [Set Aside] Sentence
Pursuant to Civil Rule 60(B)(5)" without addressing the merits of Scott's arguments. The
trial court instead simply found that, "The Civil Rules do not apply to criminal cases and the
Court lacks the authority to grant the relief the Defendant seeks under Civil Rule 60(B)."
{¶11} While it is usually true that the Rules of Civil Procedure do not apply in criminal
cases, the trial court went too far by suggesting that the Rules of Civil Procedure never
apply in criminal cases. In fact, Crim.R. 57(B) provides that "If no procedure is specifically
prescribed by rule, the court may proceed in any lawful manner not inconsistent with these
rules of criminal procedure, and shall look to the rules of civil procedure and to the
applicable law if no rule of criminal procedure exists." The Ohio Supreme Court has
recognized that "the plain language of Crim.R. 57(B) permits a trial court in a criminal case
to look to the Rules of Civil Procedure for guidance when no applicable Rule of Criminal
Procedure exists." State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 10. We have
cited Schlee and applied its reasoning in our cases. State v. Strunk, 12th Dist. Butler No.
CA2010-09-085, 2011-Ohio-417, ¶ 8 ("Therefore, the civil rules may be invoked where
appropriate to fill a void in the rules of criminal procedure in a criminal case").
{¶12} The trial court should have therefore considered—and we must now
consider—whether there was a void in the criminal procedure rules that merited Scott
looking to Civ.R. 60(B). We conclude there was no such void. On the contrary, there is a
criminal rule that addresses the type of arguments raised by Scott in his Civ.R. 60(B) motion.
2. The state characterizes Scott as arguing that he did not knowingly and voluntarily waive his rights.
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Specifically, Crim.R. 35 establishes a detailed, specific procedure for filing a petition for
postconviction relief ("PCR petition") as authorized by R.C. 2953.21. Scott's motion
amounted to a PCR petition. Strunk at ¶ 9.
{¶13} A motion qualifies as a PCR petition if it (1) is filed after a defendant's direct
appeal, (2) claims a denial of the defendant's constitutional rights, (3) seeks to render the
judgment void, and (4) asks the trial court to vacate the judgment. Id. at ¶ 10, citing State
v. Reynolds, 79 Ohio St.3d 158, 160 (1997). In reviewing the Reynolds elements, Scott's
Civ.R. 60(B) motion for relief from judgment qualified as a petition for postconviction relief,
regardless of the title of the motion. Scott filed the motion after his time to file a direct appeal
passed, claimed a denial of his constitutional due process rights, and sought to render his
conviction void and to "vacate and set aside" his sentence.
{¶14} The Ohio Supreme Court in Schlee held that "[c]ourts may recast irregular
motions into whatever category necessary to identify and establish the criteria by which the
motion should be judged." Schlee, 2008-Ohio-545 at ¶ 12. Therefore, to analyze Scott's
motion under the proper criteria, we recast that motion and analyze it as a PCR petition,
just as we did in Strunk. Id. at ¶ 10-11.
{¶15} To be timely, a PCR petition must be filed within 365 days after the trial
transcript is filed in the court of appeals (in the case of a direct appeal), or, if no appeal is
taken, no later than 365 days after the expiration of the time for filing the direct appeal. R.C.
2953.21(A)(2). The trial court sentenced Scott on September 24, 2012. Scott filed his PCR
petition approximately ten years later, clearly outside the required time period.
{¶16} In accordance with R.C. 2953.23(A)(1), a court may entertain an untimely
PCR petition if the petitioner demonstrates one of the following prerequisites: (1) he was
unavoidably prevented from discovering facts necessary for the claim for relief; or (2) the
United States Supreme Court recognized a new federal or state right that applies
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retroactively to persons in the petitioner's situation. If the petitioner satisfies his burden to
show one of these two conditions, he must then demonstrate that, but for the constitutional
error at trial, no reasonable fact finder would have found him guilty of the offenses of which
he was convicted. R.C. 2953.23(A)(1)(b).
{¶17} Scott does not argue the existence of the prerequisites for entertaining an
untimely PCR petition, and the record before us does not demonstrate that either of those
prerequisites were met in this case. Accordingly, the trial court lacked jurisdiction to
consider the merits of his PCR petition. Strunk, 2011-Ohio-417 at ¶ 14, citing State v. King,
12th Dist. Clermont No. CA2005-07-064, ¶ 7; State v. Apanovitch, 155 Ohio St.3d 358,
2018-Ohio-4744, ¶ 24. For this reason, we affirm the trial court's decision.
{¶18} Additionally, we note that a PCR petition does not provide a petitioner with a
second opportunity to litigate a conviction. State v. Boles, 12th Dist. Brown No. CA2016-
07-014, 2017-Ohio-786, ¶ 19. Therefore, a trial court may dismiss a PCR petition based on
the doctrine of res judicata. Id. "Under the doctrine of res judicata, 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 of conviction, or on an appeal from that judgment."
State v. Szefcyk, 77 Ohio St.3d 93, (1996) syllabus.
{¶19} Scott's argument that his plea agreement was invalid because it was
fraudulently induced could have been raised on direct appeal. Accordingly, even if Scott's
motion is not properly recast as a PCR petition, the argument he raises would be barred by
res judicata.
{¶20} In addition, to the extent Scott argues that his sentence was not authorized
by law, any alleged sentencing error may not be raised and adjudicated at this time. The
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Ohio Supreme Court held that sentences imposed in error are only void if the sentencing
court lacks jurisdiction over the subject matter of the case or personal jurisdiction over the
accused. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 27. Otherwise, such
sentences are voidable, and a voidable judgment has the force of a valid legal judgment.
Id. at ¶ 17. "The failure to timely—at the earliest available opportunity—assert an error in a
voidable judgment, even if that error is constitutional in nature, amounts to the forfeiture of
any objection." Id. at ¶17. In this case, the trial court had subject matter jurisdiction over
the case and personal jurisdiction over Scott at the time of sentencing. Thus, any error in
the sentence would only render it voidable, not void. And because Scott did not challenge
his sentence on direct appeal, this issue would also be barred by res judicata even if Scott's
motion were not properly recast as a PCR petition.
{¶21} For these reasons, we conclude that the trial court properly denied Scott's
"Motion to [Vacate] and [Set Aside] Sentence Pursuant to Civil Rule 60(B)(5)," although for
the wrong reason. However, "a proper decision by a lower court that is based upon
improper grounds is not cause for reversal." Strunk, 2011-Ohio-417 at ¶ 15, citing State v.
Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, ¶ 46. Accordingly, we overrule Scott's sole
assignment of error and affirm the judgment of the trial court.
{¶22} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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