[Cite as State v. Rock, 2017-Ohio-7294.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-L-010
- vs - :
DAVID V. ROCK, JR., :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 14 CR 000525.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
David V. Rock, Jr., pro se, PID: A663-040, Mansfield Correctional Institution, P.O. Box
788, 1150 North Main Street, Mansfield, OH 44901 (Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, David V. Rock, Jr. appeals from the December 28, 2016
judgment of the Lake County Court of Common Pleas, denying his Civ.R. 60(B) motion
for relief from judgment. For the following reasons, the trial court’s decision is affirmed.
{¶2} On March 30, 2015, the Lake County Court of Common Pleas entered a
judgment convicting appellant of one count of operating a vehicle under the influence
(“OVI”), a third-degree felony in violation of R.C. 4511.19(A)(1)(a), and an
accompanying R.C. 2941.1413 specification for having been convicted of five or more
OVI offenses within the previous twenty years. Appellant was sentenced to serve thirty-
six months in prison for the underlying OVI and four years for the repeat-offender
specification, to run consecutive to each other and consecutive to the sentence imposed
by the Ashland County Court of Common Pleas in case No. 10-CRI-081.
{¶3} Appellant challenged his sentence on appeal from the trial court’s March
30, 2015 judgment. State v. Rock, 11th Dist. Lake No. 2015-L-047, 2015-Ohio-4639.
We held the trial court failed to make the required findings pursuant to R.C.
2929.14(C)(4) in order to run appellant’s sentences for the OVI and specification
consecutive to his Ashland County sentence. Id. at ¶11.
{¶4} Upon remand from this court, the trial court held a hearing on December
7, 2015. The trial court entered judgment on December 8, 2015, and declined to make
the required findings for imposing consecutive sentences. The trial court ordered
appellant’s sentence for the OVI and specification be served concurrently with the
sentence imposed by the Ashland County Court of Common Pleas. State v. Rock, 11th
Dist. Lake No. 2016-L-011, 2016-Ohio-8516, ¶4.
{¶5} Appellant filed a motion for leave to file a delayed appeal from the trial
court’s December 8, 2015 judgment, which this court granted. Id. at ¶5. We affirmed
the trial court’s judgment. Id. at ¶22.
{¶6} On June 10, 2016, appellant filed a petition for postconviction relief
pursuant to R.C. 2953.21, requesting that his March 2015 conviction be vacated.
Appellee, the state of Ohio, filed a response on July 13, 2016. On July 26, 2016, the
trial court denied appellant’s petition, finding it was untimely filed and that appellant
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failed to assert an exception to the timeliness requirement that would justify delayed
relief. Appellant did not appeal that judgment.
{¶7} On December 7, 2016, appellant filed a Civ.R. 60(B) motion for relief from
judgment. Appellant moved the trial court to vacate its July 26, 2016 judgment,
pursuant to Civ.R. 60(B)(1) and (5), asserting the trial court should have applied the
“three-day mail box rule” to appellant’s petition for postconviction relief. Appellant
maintained utilizing the three-day mailbox rule would have rendered his petition timely.
He indicated, when he filed the petition, that he was incarcerated and, in prison, the
“mail was placed to a halt after 7:00 a.m., Friday June 3rd, 2016, and does not resume
until Monday June 6th.” Appellee filed a response on December 16, 2016. The trial
court denied the motion on December 28, 2016.
{¶8} On January 17, 2017, appellant filed a timely notice of appeal from the trial
court’s December 28, 2016 judgment. Appellant asserts a sole assignment of error,
which states:
{¶9} “The trial court committed prejudicial error by not granting relief from
judgment and applying Civ.R. 6(E), which would have allowed R.C. 2953.21
postconviction relief petition to be timely. [sic] This is a violation of the Fourteenth
Amendment to the United States Constitution.”
{¶10} In response, appellee argues appellant is using his Civ.R. 60(B) motion in
place of a timely filed appeal from the trial court’s judgment denying his petition for
postconviction relief. Appellee further argues appellant has failed to demonstrate the
necessary criteria to prevail on a Civ.R. 60(B) motion.
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{¶11} Civ.R. 60(B)(1) and (5) state: “On motion and upon such terms as are just,
the court may relieve a party or his legal representative from a final judgment, order or
proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; * * * or (5) any other reason justifying relief from the judgment.”
{¶12} In GTE Automatic Elec., Inc. v. ARC Indus., Inc., 47 Ohio St.2d 146
(1976), the Ohio Supreme Court set forth a three-prong test a movant must meet to
prevail on a Civ.R. 60(B) motion: (1) the motion must be filed within a reasonable time
after the judgment or order was entered, (2) the party must be entitled to relief based on
one of the reasons set forth in Civ.R. 60(B)(1)-(5), and (3) the party must demonstrate a
meritorious defense or claim to present in the event relief is granted. Id. at paragraph
two of the syllabus. Each prong must be satisfied in order for the movant to be entitled
to relief, and if one prong is not satisfied, the entire motion must be overruled. Rose
Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20 (1988) (citation omitted).
{¶13} The decision of whether to grant relief under Civ.R. 60(B) is entrusted to
the sound discretion of the trial court; we review the trial court’s decision for an abuse of
discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77 (1987) (citations omitted). An abuse
of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal
decision-making.’” State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900,
¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
{¶14} On appeal, appellant’s argument focuses on the trial court’s July 26, 2016
judgment denying his petition for postconviction relief rather than the December 28,
2016 judgment denying his Civ.R. 60(B) motion. “A Civ.R. 60(B) motion for relief from
judgment cannot be used as a substitute for a timely appeal or as a means to extend
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the time for perfecting an appeal from the original judgment.” Key v. Mitchell, 81 Ohio
St.3d 89, 90-91 (1998) (citations omitted). Appellant’s argument that the trial court
abused its discretion in denying his petition for postconviction relief could have been
raised in a timely appeal from the judgment denying the petition. Because appellant is
attempting to use his Civ.R. 60(B) motion as a substitute for a timely appeal, his
argument is without merit.
{¶15} Moreover, appellant has failed to demonstrate a meritorious defense or
claim if relief were granted, as required by GTE. There is nothing in appellant’s Civ.R.
60(B) motion that supports the argument that the trial court would have granted
appellant’s postconviction petition if relief from the trial court’s judgment denying the
petition were allowed.
{¶16} For the reasons set forth herein, the trial court did not abuse its discretion
in denying appellant’s motion for relief from judgment. Appellant’s sole assignment of
error is without merit.
{¶17} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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