[Cite as State v. Hill, 2023-Ohio-4486.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY
STATE OF OHIO, CASE NO. 2023-T-0039
Plaintiff-Appellee,
Civil Appeal from the
- vs - Court of Common Pleas
DANNY LEE HILL,
Trial Court No. 1985 CR 00317
Defendant-Appellant.
OPINION
Decided: December 11, 2023
Judgment: Reversed and remanded
Dennis Watkins, Trumbull County Prosecutor and Charles L. Morrow, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481, and Stephen Maher, Special Assistant Prosecutor, Senior Assistant Attorney
General, 30 East Broad Street, 23rd Floor, Columbus, OH 43215 (For Plaintiff-Appellee).
Stephen Newman, Federal Public Defender, Calland M. Ferraro, Assistant Federal
Public Defender, and Matthew Gay, Assistant Federal Public Defender, Capital Habeas
Unit, 1660 West Second Street, Suite 750, Cleveland, OH 44113 (For Defendant-
Appellant).
JOHN J. EKLUND, P.J.
{¶1} The issue before this Court is a narrow one. When an individual sentenced
to death previously filed a petition for postconviction relief under Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 and it was denied, may he file a Civ.R. 60(B)
motion for relief from judgment or seek a second postconviction relief petition after the
legal authority on which the prior denial was based has been reversed or otherwise
vacated?
{¶2} Appellant, Danny Lee Hill, appeals after the trial court issued judgment entry
recasting appellant’s Civ.R. 60(B) motion as a petition for postconviction relief. The trial
court determined that Crim.R. 35 and R.C. 2953.23 set forth the procedure for seeking
postconviction relief. Therefore, Crim.R. 57, allowing the application of the Civil Rules of
Procedure where no Rule of Criminal Procedure exists, did not permit appellant to file a
Civ.R. 60(B) motion for relief from judgment. In concluding this, the trial court applied
State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431. The trial court
further concluded that appellant did not satisfy the requirements for postconviction relief
under R.C. 2953.21 and R.C. 2953.23.
{¶3} Appellant has raised two assignments of error arguing the following: (1) the
trial court erred by recasting his Civ.R. 60(B) motion for relief from judgment into a second
petition for postconviction relief pursuant to Schlee; (2) the trial court erred in concluding
appellant did not meet the requirements for a second postconviction relief petition.
{¶4} Having reviewed the record and the applicable caselaw, we find appellant’s
first assignment of error to have merit. The trial court erred when it concluded appellant’s
Civ.R. 60(B) motion for relief from his prior Atkins postconviction relief judgment was an
irregular motion subject to be recast under Schlee. Appellant’s Civ.R. 60(B) motion
related to his initial Atkins petition for postconviction relief, which was a collateral civil
matter. There was no need to recast his civil motion into an appropriate motion as
provided under the Criminal rules.
{¶5} Therefore, we reverse the judgment of the Trumbull County Court of
Common Pleas, and this case is remanded for the trial court to consider appellant’s Civ.R.
60(B) motion for relief from judgment.
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Substantive and Procedural History
{¶6} Appellant’s convictions are based on the murder of Raymond Fife on
September 10, 1985. The factual record is set forth in detail in State v. Hill, 11th Dist.
Trumbull Nos. 3720 and 3745, 1989 WL 142761 (Nov. 27, 1989), and State v. Hill, 64
Ohio St.3d 313, 595 N.E.2d 884 (1992).
{¶7} Although appellant raised issues of his intellectual disability during the
mitigation phase of his sentencing, nothing at the time barred the imposition of the death
penalty for persons with intellectual disabilities. Appellant was sentenced to death.
Initial Petition for Postconviction Relief pursuant to Atkins:
{¶8} In 2002, the United States Supreme Court determined the Eighth
Amendment’s bar against cruel and unusual punishment prohibits the imposition of the
death penalty for “mentally retarded” 1 persons. Atkins at 321.
{¶9} In the wake of Atkins, the Ohio Supreme Court set forth three criteria for
establishing whether a person is intellectually disabled. State v. Lott, 97 Ohio St.3d 303,
2002-Ohio-6625, 779 N.E.2d 1011. Under Lott, a defendant was required to
demonstrate: “(1) significantly subaverage intellectual functioning, (2) significant
limitations in two or more adaptive skills, such as communication, self-care, and self-
direction, and (3) onset before the age of 18.” Id. at ¶ 12. The court further held that
“[w]hile IQ tests are one of the many factors that need to be considered, they alone are
not sufficient to make a final determination on this issue,” and “there is a rebuttable
presumption that a defendant is not mentally retarded if his or her IQ is above 70.” Id.
1. “Mentally retarded” was the prior term for “intellectual disability.” Intellectual disability is used
throughout this opinion consistent with current usage.
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{¶10} In 2003, as a result of the Atkins and Lott decisions, appellant filed a petition
to vacate his death sentence through a petition for postconviction relief under R.C.
2953.21. The trial court ruled that appellant’s petition stated “substantive ground for relief
sufficient to warrant an evidentiary hearing.” State v. Hill, 177 Ohio App.3d 171, 2008-
Ohio-3509, 894 N.E.2d 108, ¶ 15 (11th Dist.). The Court, the State, and appellant each
obtained experts to assess appellant’s intellectual disability. Id. at ¶ 16.
{¶11} The State retained Dr. J. Gregory Olley, a professor at the University of
North Carolina at Chapel Hill and a director of the university's Center for the Study of
Development and Learning. Id. Hill retained as his expert Dr. David Hammer, a professor
at the Ohio State University and the director of psychology services at the university's
Nisonger Center. Id. The court, through the Forensic Center of Northeast Ohio, retained
Dr. Nancy Huntsman, of the Court Psychiatric Clinic of Cleveland. Id.
{¶12} The experts evaluated appellant and determined that he was malingering
and therefore resorted to collateral sources such as appellant’s school records and
evaluations performed at the time of his sentencing and institutional records obtained
during his incarceration to reach their conclusions. Id. at ¶ 17.
{¶13} At the Atkins evidentiary hearing, Dr. Olley, the State’s expert, testified that
appellant was not mentally disabled. Id. at ¶ 18. Dr. Huntsman came to the same
conclusion while appellant’s expert, Dr. Hammer, concluded he qualified for a diagnosis
of “mild” intellectual disability. Id.
{¶14} In 2006, the trial court rejected appellant’s petition for postconviction relief
and appellant appealed to this Court in State v. Hill, 177 Ohio App.3d 171, 2008-Ohio-
3509, 894 N.E.2d 108 (11th Dist.). One of appellant’s assignments of error in that appeal
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argued that the trial court erred in determining he was not a person with intellectual
disability.
{¶15} Reviewing the trial court’s denial of his postconviction relief petition under
an abuse of discretion standard, this Court concluded appellant satisfied the first prong
of the Lott criterion because he had significantly subaverage intellectual functioning. Id.
at ¶ 76. However, we concluded there was “abundant competent and credible evidence
to support the trial court's conclusion” that appellant had not satisfied the second prong
because appellant did not carry his burden of demonstrating significant limitations in two
or more adaptive skills, such as communication, self-care, and self-direction. Id. at ¶ 99.
Finally, because appellant failed to meet the second prong, he necessarily failed to
demonstrate the onset of his intellectual disability before age 18. Id. at ¶ 100. One judge
dissented, asserting the trial court abused its discretion in finding appellant had not
demonstrated he was a person with intellectual disability under the three-prong test then
in effect under Lott. Id. at ¶ 118. (O’Toole, J. Dissenting).
Subsequent judicial precedent:
{¶16} After appellant’s Atkins postconviction petition was denied, the United
States Supreme Court rendered decisions in Hall v. Florida, 572 U.S. 701, 134 S.Ct. 1986,
188 L.Ed.2d 1007 (2014), Moore v. Texas, 581 U.S. 1, 137 S.Ct. 1039, 197 L.Ed.2d 416
(2017) (“Moore I”), and Moore v. Texas, 586 U.S. ----, 139 S.Ct. 666, 203 L.Ed.2d 1 (2019)
(“Moore II”), which struck down state-court decisions on intellectual disability by applying
updated medical diagnostic standards.
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{¶17} After those decisions, the Supreme Court of Ohio decided State v. Ford,
158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, and announced the Lott test for
intellectual disability was outdated. Id. at ¶ 100. Specifically, the Court in Ford held that
the Lott test was “the wrong standard” because of its rebuttable presumption that an
offender is not intellectually disabled where the offender’s IQ score is above 70 and its
requirement of finding significant limitations in two or more adaptive skills. Id. at ¶ 94-95,
97.
{¶18} The updated, and current, test Ohio courts must consider in determining
intellectual disability is: (1) intellectual-functioning deficits (indicated by an IQ score of
approximately 70 or lower); (2) significant adaptive deficits in any of the three adaptive-
skill sets (conceptual, social, and practical); and (3) the onset of these deficits while the
defendant was a minor. State v. Williams, 2021-Ohio-241, 167 N.E.3d 527 (11th
Dist.), appeal not allowed, 163 Ohio St.3d 1493, 2021-Ohio-2270, 169 N.E.3d 1276, ¶ 30,
citing Ford at ¶ 100.
Appellant’s reevaluation under current judicial precedent:
{¶19} After appellant exhausted his State court remedies through direct appeals
and his petition for post-conviction relief, he pursued Federal habeas relief under Atkins.
Those proceedings concluded with the United States Supreme Court denying a writ of
certiorari for his Atkins claim in June 2022. Hill v. Shoop, --- U.S. ---, 142 S.Ct. 2579, 213
L.Ed.2d 1134 (2022).
{¶20} During the pendency of appellant’s petition for certiorari, Dr. Olley, the
State’s expert witness in appellant’s initial Atkins claim, reevaluated appellant in light of
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the new standards set forth in Ford. Dr. Olley concluded that appellant “has been a person
with intellectual disability since early childhood.”
{¶21} In July 2022, appellant filed a “Civil Rule 60(B) Motion for Reconsideration
of Determination Under Atkins v. Virginia with Request for Evidentiary Hearing.” Appellant
argued that under Civ.R. 60(B)(4) and (5), he was entitled to relief from the denial of his
Atkins petition for postconviction relief because he had been evaluated under the now
outdated Lott standard. Alternatively, appellant argued he was entitled to file a second
petition for postconviction relief under Atkins. Appellant appended two volumes of
exhibits, including Dr. Olley’s new report and an affidavit, which he maintained supported
his argument that he was a person with intellectual disability under the new Ford standard.
Appellant argued he was entitled to relief from the court’s denial of his Atkins claim
because subsequent events, including the updated definition of intellectual disability
under Ohio law rendered it inequitable to continue under his prior Atkins postconviction
relief judgment.
{¶22} The State moved to dismiss appellant’s Civ.R. 60(B) motion, arguing that it
should be recast as a second petition for postconviction relief under State v. Schlee, 117
Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431 because it was: (1) filed subsequent to
his direct appeal; (2) claimed a denial of his constitutional rights; and (3) sought reversal
of the judgment rendered against him. The State further argued that appellant did not
meet the statutory requirements for filing a second Atkins petition for postconviction relief.
{¶23} In response, appellant argued that Civ.R. 60(B) was the appropriate
procedure for his motion as he was seeking “to reopen his [postconviction relief]
proceedings,” not to vacate his conviction. Rather, he merely sought a new Atkins hearing
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under the appropriate and current standard. Appellant also argued that he was entitled to
a second postconviction relief petition because the Ford decision was necessitated by
new United States Supreme Court rulings in Moore I and II.
{¶24} The State replied appellant was actually trying to have his death sentence
vacated rather than seeking relief from the postconviction judgment and, because of this,
his remedies were confined to postconviction relief.
{¶25} On May 3, 2023, the trial court issued a nunc pro tunc judgment entry
recasting appellant’s Civ.R. 60(B) motion as a petition for postconviction relief. The trial
court determined that Crim.R. 35 and R.C. 2953.23 set forth the procedure for seeking
postconviction relief. Therefore, Crim.R. 57, allowing the application of the Civil Rules of
Procedure where no Rule of Criminal Procedure exists, did not permit appellant to file a
Civ.R. 60(B) motion for relief from judgment. In concluding this, the trial court applied
Schlee.
{¶26} The court then concluded that appellant failed to satisfy the requirements
for filing a second petition because he had not been unavoidably prevented from
discovering the facts he relied upon to present it. The court said that appellant had known
the historical facts of the case and Dr. Olley’s change of opinion about appellant’s
intellectual disability in light of Ford “is not the type of historical fact contemplated by R.C.
2953.21. * * * The report offers a new opinion, not new facts or evidence.” (Citing State v.
Jackson, 2020-Ohio-4015, 157 N.E.3d 240 (3rd Dist.)).
{¶27} The trial court further concluded that R.C. 2953.23(A) jurisdictionally barred
the court from reviewing the untimely second petition because the United States Supreme
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Court did not create a new state or federal right. Instead, Hall, Moore I, and Moore II
merely analyzed the application of Atkins claims.
{¶28} Finally, the trial court found appellant could not demonstrate “by clear and
convincing evidence” that but for a constitutional error at trial he would not have been
found guilty as required under R.C. 2953.23(A)(1)(b). However, the trial court did not
similarly conclude appellant could not demonstrate that “but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the petitioner eligible for
the death sentence” as also set forth in R.C. 2953.23(A)(1)(b).
{¶29} Appellant timely appealed, raising two assignments of error.
Assignments of Error and Analysis
{¶30} Appellant’s first assignment of error states:
{¶31} “[1.] The Trial Court Erred In Holding That Civil Rule 60(B) Is An Improper
Vehicle For Seeking Relief From A Prior Post-Conviction Judgment. (T.d. 446, pp. 4-5).”
{¶32} Appellant filed a Civ.R. 60(B) motion for relief from judgment. The trial court
recast that motion as a second petition for postconviction pursuant to State v. Schlee and
Crim.R. 57.
{¶33} Appellant argues this was improper because he sought relief from the
judgment in his original Atkins postconviction relief petition, and not the judgment of
conviction itself. As the Atkins petition was a collateral civil matter, he argues there is no
need to rely on Crim.R. 57 or Schlee to recast his Civ.R. 60(B) motion because the Civil
rules are the applicable procedural mechanism to seek relief from a civil judgment.
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Postconviction relief:
{¶34} The procedures for postconviction relief are set forth in R.C. 2953.21 et seq.
These statutes provide the framework for reviewing an Atkins claim. State v. Williams,
2021-Ohio-241, 167 N.E.3d 527 at ¶ 31. Petitioners raising an Atkins claim for
postconviction relief bear the burden of establishing their intellectual disability by a
preponderance of the evidence. Id.
{¶35} “[A] postconviction proceeding is not an appeal of a criminal conviction but,
rather, a collateral civil attack on the judgment.” State v. Calhoun, 86 Ohio St.3d 279, 281,
714 N.E.2d 905 (1999). A postconviction petitioner “receives no more rights than those
granted by the statute.’” Id. “This means that any right to postconviction relief must arise
from the statutory scheme enacted by the General Assembly.” State v. Apanovitch, 155
Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, at ¶ 35.
{¶36} “[C]ases of postconviction relief pose difficult problems for courts,
petitioners, defense counsel and prosecuting attorneys alike.” State v. Milanovich, 42
Ohio St.2d 46, 51, 325 N.E.2d 540 (1975).
Cases long considered to be fully adjudicated are reopened, although
memories may be dim and proof difficult. The courts justifiably fear frivolous
and interminable appeals from prisoners who have their freedom to gain
and comparatively little to lose. Yet these very difficulties make imperative
the duty of courts to carefully exercise their judicial functions, and, most
importantly, the duty of prosecuting attorneys to exercise their functions as
adversaries, within the procedural framework set out in R.C. 2953.21.
Id. at 51-52.
Civ.R. 60(B):
{¶37} Ordinarily, a movant filing a Civ.R. 60(B) motion for relief from judgment
must satisfy the three-prong test set out in GTE Automatic Elec., Inc. v. ARC Industries,
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Inc., 47 Ohio St.2d 146, 351 N.E.2d 113 (1976). Appellant must demonstrate: (1) a
meritorious claim or defense to raise if relief is granted; (2) entitled to relief under one of
the subsections of Civ.R. 60(B); and (3) the motion is made within a reasonable time and,
where the grounds for relief are Civ.R. 60(B)(1), (2), or (3), the motion is made not more
than one year after the judgment was entered. Id. at paragraph two of the syllabus.
{¶38} “‘Although a movant is not required to support its motion with evidentiary
materials, the movant must do more than make bare allegations that he or she is entitled
to relief.’” Gregory v. Abdul Aal, 11th Dist. Trumbull No. 2002-T-0176, 2004-Ohio-1703, ¶
22, quoting Kay v. Glassman, 76 Ohio St.3d 18, 20, 1996–Ohio–430, 665 N.E.2d 1102
(1996).
{¶39} Civ.R. 60(B) exists in order for a party to seek relief from final orders due to
allegations that cannot be raised on appeal. State v. Brown, 7th Dist. Mahoning No. 13
MA 172, 2014-Ohio-5824, ¶ 72. In this case, appellant has claimed he is entitled to relief
under Civ.R. 60(B)(4) and (5), which provide for relief from an order when: “(4) the
judgment has been satisfied, released, or discharged, or a prior judgment upon which it
is based has been reversed or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (5) any other reason justifying relief
from judgment.”
{¶40} Civ.R. 60(B)(4) applies to judgments that are no longer equitable where
those subjected to the judgment did not have the ability to foresee or control, such as a
change in circumstances. See Knapp v. Knapp, 24 Ohio St.3d 141, 493 N.E.2d 1353
(1986). The Civ.R. 60(B)(5) “catch all” provision applies only when a more specific
provision does not apply. Caruso–Ciresi, Inc. v. Lohman, 5 Ohio St.3d 64, 66, 5 OBR 120,
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122, 448 N.E.2d 1365, 1367 (1983). “Civ.R. 60(B)(5) may be invoked only in
extraordinary and unusual circumstances when the needs of justice demand.” Ohio Cas.
Ins. Co. v. Valaitis, 11th Dist. Lake No. 2011-L-062, 2012-Ohio-2561, ¶ 29.
Death is Different:
{¶41} Finally, the overriding principle, applicable to any death penalty case, is
that “death is different.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91
L.Ed.2d 335 (1986) (plurality opinion). In capital proceedings, courts must “aspire to a
heightened standard of reliability.” Id. “This especial concern is a natural consequence of
the knowledge that execution is the most irremediable and unfathomable of penalties;
that death is different.” Id. “[T]he qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the capital sentencing
determination.” California v. Ramos, 463 U.S. 992, 998-999, 103 S.Ct. 3446, 77 L.Ed.2d
1171 (1983).
Recasting motions under State v. Schlee:
{¶42} In State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431,
the Ohio Supreme Court determined that a trial court may recast a Civ.R. 60(B) motion
for relief from judgment as a petition for postconviction relief, even when the motion is
unambiguously presented as a Civ.R. 60(B) motion. Id. at syllabus. Schlee was convicted
of aggravated murder and sentenced to life imprisonment. Id. at ¶ 1. The court of appeals
affirmed Schlee’s direct appeal. Id. Schlee then filed two postconviction relief petitions,
both of which the trial court denied. Id. at ¶ 2. “Having exhausted all appeals and
postconviction-relief proceedings, Schlee filed a motion for a new trial, which was
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granted.” Id. at ¶ 3. Schlee was again convicted after his new trial and the court of appeals
again affirmed his conviction on direct appeal. Id.
{¶43} Schlee then filed a Civ.R. 60(B) motion for relief from judgment arguing
prosecutorial misconduct in both of his trials. Id. at ¶ 4. He sought reversal of his
conviction and dismissal of the indictment with prejudice. Id. The trial court treated his
Civ.R. 60(B) motion as a petition for postconviction relief and dismissed the petition as
untimely. Id. at ¶ 5.
{¶44} Under Crim.R. 57(B), “[i]f 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.” Crim.R. 35 sets forth the procedure by which criminal
defendants can file postconviction relief petitions.
{¶45} The Ohio Supreme Court said that court “may recast irregular motions into
whatever category necessary to identify and establish the criteria by which the motion
should be judged.” Schlee at ¶ 12.
{¶46} Therefore, when a defendant in a criminal case files a Civ.R. 60(B) motion
for relief from judgment, the court may recast that motion as a petition for postconviction
relief where the Rules of Criminal Procedure already specifically prescribed the
appropriate procedure. Id. at ¶ 12-13. The Court said that an irregular motion may meet
the definition of a petition for postconviction relief where the motion is:
(1) filed subsequent to [the defendant's] direct appeal, (2) claimed a denial
of constitutional rights, (3) sought to render the judgment void, and (4)
asked for vacation of the judgment and sentence.
Id. at ¶ 12, quoting State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).
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{¶47} The court said that the motion Schlee filed met the above criteria and
therefore “could have been filed as petition for postconviction relief. Thus, it was not
necessary to look to the Civil rules or other applicable law for guidance in the way Crim.
R. 57(B) intends because a procedure ‘specifically prescribed by rule’ exists, i.e., Crim.R.
35.” Id.
{¶48} For our purposes, it is important to note that in Schlee, the defendant
received a new trial, was convicted, and did not file a petition for postconviction relief after
his second trial. Therefore, the Ohio Supreme Court applied Crim.R. 57 to determine that
“it was not necessary to look to the Civil rules or other applicable law for guidance in the
way Crim. R. 57(B) intends because a procedure ‘specifically prescribed by rule’ exists,
i.e., Crim.R. 35.” Id. at ¶ 12.
{¶49} The threshold issue is whether the motion is an “irregular motion.” When a
motion is irregular, a court may recast it. However, where the motion is in conformity with
the applicable rules of procedure, there is no need to recast it. While a postconviction
relief petition is the exclusive remedy to bring a collateral challenge to the validity of a
conviction or sentence, once brought, the Civil rules necessarily control that collateral
challenge. See State v. Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151,
¶ 33, quoting R.C. 2953.21(K). (“[A] petition for postconviction relief is ‘the exclusive
remedy by which a person may bring a collateral challenge to the validity of a conviction
or sentence in a criminal case.’” (Emphasis in quote.)).
{¶50} In State v. Adams, 12th Dist. Butler No. CA2010-12-321, 2011-Ohio-1721,
the State appealed, asking the court to recast the defendant’s Civ.R. 60(B) motion as a
second postconviction relief motion pursuant to Schlee. Id. at ¶ 12. The defendant had
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previously filed a postconviction relief petition, which the trial court dismissed as untimely.
Id. at ¶ 3. The defendant filed a Civ.R. 60(B) motion for relief from judgment seeking the
reversal of the dismissal of his postconviction relief petition. Id. The Twelfth District Court
of Appeals determined that the defendant’s Civ.R. 60(B) motion was “not a petition for
postconviction relief” because “the Civ.R. 60(B) motion merely seeks to reverse the
dismissal of his [postconviction relief] petition on the ground appellant was misinformed
as to the correct filing date for the petition. * * * We will therefore consider
appellant's Civ.R. 60(B) motion as a Civ.R. 60(B) motion.” Id. at ¶ 15.
{¶51} The case before this Court is unlike Schlee. In 2003, appellant filed a
petition for postconviction relief. A civil judgment was entered in relation to that petition.
As noted above, a petition for postconviction relief is “a collateral civil attack on the
judgment.” Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999). Thus, unlike Schlee,
appellant need not resort to Crim.R. 57(B) to apply the Civil rules where no Criminal rule
exists because his Civ.R. 60(B) motion is directed at the judgment entered in his civil
postconviction relief petition. As in Adams, appellant’s Civ.R. 60(B) motion is a motion
seeking to revisit the judgment entered in his postconviction relief petition rather than
directly seeking to vacate the judgment of conviction. We therefore consider his “Civ.R.
60(B) motion as a Civ.R. 60(B) motion.” Adams at ¶ 15.
{¶52} Appellant’s Civ.R. 60(B) motion is not an irregular motion. Instead, it is the
appropriate motion to file to seek relief from the civil judgment that was entered on his
petition for postconviction relief. There is no need to apply Crim.R. 57 because the Civil
rules apply in the first instance. Although we determine that the trial court erred by
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recasting appellant’s Civ.R. 60(B) motion for relief from judgment, we do not render an
opinion on whether appellant has satisfied the three-prong test set out in GTE Automatic.
{¶53} Accordingly, appellant’s first assignment of error has merit.
{¶54} Appellant’s second assignment of error states:
{¶55} “[2.] Even If Mr. Hill Is Not Entitled To Relief Under Rule 60(B), The Trial
Court Erred In Concluding That Mr. Hill Failed to Meet The Requirements For A Second
Post-Conviction Petition Under R.C. 2953.23. (T.d. 446, pp. 5-13).”
{¶56} As we have determined the trial court erred in recasting appellant’s Civ.R.
60(B) motion, we need not address whether the trial court was correct in concluding
appellant failed to meet the requirements for a second postconviction petition. Upon
remand, the trial court is instructed to proceed from the point of error. See State v. Goff,
154 Ohio St.3d 218, 2018-Ohio-3763, 113 N.E.3d 490. Here, the error occurred when the
trial court recast appellant’s Civ.R. 60 (B) motion.
{¶57} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas is reversed, and this case is remanded for the trial court to consider
appellant’s Civ.R. 60(B) motion for relief from judgment, under the criteria and standards
by which such a motion is to be judged.
MATT LYNCH, J.,
ROBERT J. PATTON, J.,
concur.
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