[Cite as State v. Dunkle, 2019-Ohio-2900.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
DAVID E. DUNKLE,                             :       Case No. 19-CA-15
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     86CR16341




JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    July 16, 2019




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

WILLIAM C. HAYES                                     DAVID E. DUNKLE, pro se
Licking County Prosecutor                            #R138316
                                                     Marion Correctional Institution
By: PAULA M. SAWYERS                                 PO Box 57
Assistant Prosecuting Attorney                       Marion, Ohio 43301
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 19-CA-15                                                    2

Baldwin, J.

       {¶1}   David E. Dunkle appeals the Licking County Common Pleas Court’s denial

of his Motion to Vacate Void Sentence as Contrary to Law. Appellee is the State of Ohio.

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   A review of the details of the case concluding with charges against

Appellant is unnecessary for the disposition of this appeal and is therefore omitted.

       {¶3}   In 1986, Appellant was convicted of multiple counts of rape and sentenced

to consecutive life sentences by the Licking County Court of Common Pleas.

       {¶4}   In 2005, Appellant 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.

       {¶5}   In October of 2010, Appellant 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, Appellant 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. Appellant

sought reconsideration of that decision, which was denied. We dismissed Appellant'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.

       {¶6}   On May 17, 2012, Appellant 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. We found the trial court did not err in

overruling his complaint. State v. Dunkle, 5th Dist. Licking No. 13-CA-2, 2013-Ohio-2007.
Licking County, Case No. 19-CA-15                                                       3


       {¶7}   On September 4, 2012, Appellant 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. Appellant requested the trial court resentence him so that he could

appeal his original sentence. The trial court considered Appellant'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.

       {¶8}   On July 11, 2013, Appellant 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 Appellant'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.

       {¶9}   On November 19, 2014, Appellant 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, Appellant 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 Appellant's motion. The trial court considered Appellant's motion to be a

petition for post-conviction relief and denied the petition as untimely. Appellant appealed

arguing this court should immediately void the judgment against him, vacate and reverse
Licking County, Case No. 19-CA-15                                                  4


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.

      {¶10} On April 6, 2017, Appellant filed a Motion to Arrest Judgment. The trial court

denied the motion on August 24, 2017. Appellant filed a Motion to Correct Clerical

Mistake on September 18, 2017. The motion was denied on September 20, 2017.

      {¶11} On June 11, 2018 Appellant filed a Motion to Vacate or Set Aside Judgment

of Conviction and Sentence. The motion was denied on June 20, 2018.

      {¶12} Appellant 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. Appellant filed an appeal. We

overruled the assignments of error, holding “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.” State v. Dunkle, 5th Dist. Licking

No. 18-CA-86, 2019-Ohio-76, ¶ 20.

      {¶13} Appellant filed a Motion to Vacate Void Sentence as Being Contrary to Law

on February 6, 2019. His motion was denied by the trial court as barred by res judicata

and a finding that Appellant’s assertion that he was not notified of the maximum penalty

for each charge was contradicted by the record. Appellant filed a notice of appeal and

submitted two assignments of error:

      {¶14} “I. THE TRIAL COURT VIOLATED THE DEFENDANT'S DUE PROCESS

RIGHTS BY FAILING TO ADVISE HIM OF HIS RIGHT TO APPEAL, AS OF RIGHT,

PURSUANT TO CRIM.R.P. 32(B) (SIC) AND THE FIFTH & FOURTEENTH
Licking County, Case No. 19-CA-15                                                        5


AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND IS CONTRARY TO

THE LAW OF THIS STATE, AND RESULTS IN PLAIN ERROR CRIM.R. 52(B).”

       {¶15} “II. THE TRIAL COURT FAILED TO STATE NEGOTIATED PLEA ON PLEA

AGREEMENT JOURNAL, AS OF AMOUNTED TIME THEREFORE WAS NOT

ENTERED, RENDERING CONTRACT VOID AND CONTRARY TO LAW, PURSUANT

TO CRIMINAL R. 11(F), RESULTING IN PLAIN ERROR, CRIM.R. 52(B). (SIC).”

                                  STANDARD OF REVIEW

       {¶16} The Appellant’s request, though captioned a Motion to Vacate Void

Sentence as Contrary to Law, is a petition for post-conviction relief because “it was (1)

filed subsequent to direct appeal, (2) claims a denial of constitutional rights, (3) seeks to

render the judgment void, and (4) asks for vacation of the judgment and sentence.” State

v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997). Despite our prior holdings

regarding timeliness, Appellant has again omitted any explanation for his untimely request

for relief. Appellant was obligated to file his petition for post-conviction relief no later than

three hundred sixty-five days after the expiration of the time for filing the appeal. R.C.

2953.21. 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). State v. Dunkle, 5th Dist. Licking

No. 18-CA-86, 2019-Ohio-76, ¶ 16.
Licking County, Case No. 19-CA-15                                                       6


       {¶17} Appellant’s petition is grossly delinquent, being related to a conviction that

occurred more than thirty years prior to the filing of the petition and he makes no effort to

argue that he was unavoidably prevented from discovering the errors he asserts. The

trial court, therefore, had no jurisdiction to consider this petition. State v. Apanovitch, 155

Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, reconsideration denied, 154 Ohio

St.3d 1467, 2018-Ohio-5210, 114 N.E.3d 217.

       {¶18} Not only does Appellant fail to demonstrate he was unavoidably prevented

from discovering the facts necessary for the claim for relief, the only source for the facts

he alleges is the record in this case, which leads to the issue of res judicata.

       {¶19} Appellant’s post-conviction petition for relief is based upon his contention

that the trial court failed to notify him of his right to appeal, that a negotiated plea was not

properly recorded in the record and that he was not notified of the maximum sentence

imposed. Ascertaining the validity of any of his assertions requires a review of the record

of his 1986 conviction. “[A] common pleas court may apply the doctrine of res judicata to

dismiss a post-conviction claim, when the claim presents a matter that could fairly have

been determined without resort to evidence dehors the record. In the case at bar,

Appellant presents no evidence outside the record to support his claim. Accordingly, the

claim presents a matter that could fairly have been determined without resort to evidence

dehors the record.” State v. Wilson, 5th Dist. Delaware No. 18CAA040035, 2018-Ohio-

5167, ¶¶ 64-65, appeal not allowed, 155 Ohio St.3d 1422, 2019-Ohio-1421, 120 N.E.3d

868, ¶¶ 64-65.

       {¶20} The Supreme Court of Ohio has applied the doctrine of res judicata in post-

conviction petition matters. Under the doctrine of res judicata, a final judgment of
Licking County, Case No. 19-CA-15                                                    7


conviction bars the defendant who was represented by counsel from raising and litigating

in any proceedings, except an appeal from that judgment, any defense or claimed lack of

due process that the defendant raised or could have raised at the trial which resulted in

that judgment of conviction or on appeal from that judgment.” State v. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233 (1996), syllabus; State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967), paragraph nine of the syllabus.

       {¶21} Appellant in the case before us was represented by counsel and had the

opportunity to raise the issues described in his post-conviction petition in a direct appeal.

He failed to do so and, therefore, his assignments are barred by res judicata. State v.

Lusher, 5th Dist. Richland No. 14CA72, 2015-Ohio-1924, ¶ 20.

       {¶22} Even if we were to consider Appellant’s arguments, we would reach the

same conclusion. Appellant references Crim.R. 11(F) which states: “(F) Negotiated Plea

in Felony Cases. When, in felony cases, a negotiated plea of guilty or no contest to one

or more offenses charged or to one or more other or lesser offenses is offered, the

underlying agreement upon which the plea is based shall be stated on the record in open

court.” Appellant also contends that he was not notified his right to appeal as required by

Crim.R. 32.

       {¶23} The trial court is obligated to engage in a plea colloquy insuring that the

Appellant understood the consequences of a plea. This dialogue with the Appellant is to

occur in open court on the record and would be found in the transcript of the sentencing

hearing. Appellant did not provide a transcript of the sentencing hearing for our review

and appellant never filed a direct appeal. Had he done so, he may have had access to

his transcript, or he could have submitted a statement pursuant to App.R. 9(C) or (D) to
Licking County, Case No. 19-CA-15                                                     8


reconstruct the record which he failed to do. Therefore, we must presume regularity of

the plea hearing. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197 (1980). Further, the

record does contain multiple petitions executed by Appellant upon which the maximum

penalty was recorded as well as a statement from his counsel acknowledging that he

explained the maximum penalty to Appellant. Finally, the record contains no evidence of

any negotiated plea agreement. We find Appellant’s signed petitions and his attorney’s

representation, coupled with the presumption of regularity regarding the sentencing

hearing, to be sufficient to give appellant notice of the consequences of his plea.

       {¶24} Appellant relies on the text of Crim.R. 32 to support his argument regarding

notice of his right to appeal, but that Rule did not exist in its current form until amendment

in 1998. Crim. R. 32, Comments. Prior to the amendment, the requirement regarding

notification appeared in Crim.R. 32(A)(2) and stated in relevant part that: “[a]fter imposing

sentence in a serious offense that has gone to trial on a plea of not guilty, the court shall

advise the defendant *** [t]hat the defendant has a right to appeal***.” Appellant was

convicted in 1986 upon a plea of guilty. His case did not go to trial on a plea of not guilty

and the version of Crim.R. 32 in effect at the time of his conviction did not obligate the

trial court to provide a notice of a right to appeal. Consequently, Appellant’s assignment

would fail on its merits.

       {¶25} We hold that the Appellant’s post-conviction petition for relief was untimely

and the trial court had no jurisdiction to consider the petition. We further find that the

matters presented by the Appellant are barred by the doctrine of res judicata and that

even if they were considered, they would fail for lack of a transcript and on the merits.
Licking County, Case No. 19-CA-15                                           9


      {¶26} The Appellant’s assignments of error are denied and the decision of the

Licking County Court of Common Pleas is affirmed.



By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.
