[Cite as State v. Kennedy, 2020-Ohio-2989.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               LOGAN COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                               CASE NO. 8-19-44

       v.

ROSALIE N. KENNEDY,                                      OPINION

       DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                           Trial Court No. CR 17 03 0075

                                     Judgment Affirmed

                             Date of Decision: May 18, 2020




APPEARANCES:

        Stephen P. Hardwick for Appellant

        Alice Robinson-Bond for Appellee
Case No. 8-19-44


ZIMMERMAN, J.

        {¶1} Defendant-appellant, Rosalie N. Kennedy (“Kennedy”), appeals the

August 9, 2019 judgment entry of the Logan County Common Pleas Court denying

her relief-from-judgment motion under Civ.R. 60(B). For the reasons that follow,

we affirm.

        {¶2} The Logan County Grand Jury indicted Kennedy on March 14, 2017 on

the charges of murder in violation of R.C. 2903.02(A), an unclassified felony, with

a firearm specification under R.C. 2941.145(A) and felonious assault in violation of

R.C. 2903.11(A), a second-degree felony, also with a firearm specification under

R.C. 2941.145(A). The charges stemmed from the shooting death of Kennedy’s

husband that occurred on March 10th. (Doc. No. 2.); (See Doc. Nos. 47, 264).

        {¶3} On March 17, 2017, Kennedy appeared for arraignment and entered

pleas of not guilty to the charges. (Doc. No. 12). Her case proceeded to a jury trial

on November 7, 8, 9, and 10, 2017 wherein Kennedy was found guilty of the charges

and specifications. (Nov. 10, 2017 Tr., Vol. VII, at 966-977); (Dec. 21, 2017 Tr. at

3); (Doc. Nos. 196, 197, 198, 199, 216, 255, 256, 257, 258, 259, 260, 261, 262).

Following the trial, Kennedy filed a lengthy motion for acquittal, or alternatively,

for a new trial which the trial court denied. (Doc. Nos. 213, 214, 215, 216, 217,

219).




                                         -2-
Case No. 8-19-44


        {¶4} Kennedy was sentenced on December 21, 2017 wherein the trial court

merged her murder and felonious assault convictions for the purposes of sentencing.

(Doc. Nos. 218, 227). The State elected to proceed on the murder charge and

specification, and the trial court sentenced Kennedy to serve a prison term of three

years on the firearm specification and a consecutive-mandatory-indefinite-prison

term of 15 years to life on the murder charge. (Dec. 21, 2017 Tr. at 3); (Doc. Nos.

227, 262).

        {¶5} Thereafter and on January 12, 2018, Kennedy filed her first notice of

appeal.1 (Doc. No. 223, 233, 236, 237, 238, 239, 242, 248, 251). On October 15,

2018, we affirmed her convictions. (Doc. No. 264).

        {¶6} On March 22, 2019, Kennedy petitioned the trial court for

postconviction relief under R.C. 2953.21. (Doc. No. 271). The State filed a

memorandum in opposition to Kennedy’s petition and a motion for summary

judgment on April 1, 2019.               (Doc. Nos. 274, 275).             Then, Kennedy filed a

memorandum in opposition to the State’s motion for summary judgment on May

15, 2019. (Doc. No. 281). The trial court granted the State’s motion for summary

judgment on June 11, 2019. (Doc. No. 282). Importantly, Kennedy did not timely

appeal the trial court’s order on summary judgment.



1
 This court recited much of the factual and procedural background of this case in a previous appeal, and we
will not duplicate those efforts here. See, State v. Kennedy, 3d Dist. Logan No. 8-18-01, 2018-Ohio-4172,
appeal not accepted, 154 Ohio St.3d 1510, 2019-Ohio-601.

                                                   -3-
Case No. 8-19-44


        {¶7} However, on July 18, 2019, Kennedy filed a motion for relief from

judgment under Civ.R. 60(B). (Doc. No. 285). The State filed a memorandum in

opposition to Kennedy’s 60(B) motion on July 22, 2019.               (Doc. No. 286).

Ultimately, the trial court denied Kennedy’s motion on August 9, 2019. (Doc. No.

288).

        {¶8} On August 19, 2019, Kennedy filed a notice of appeal. (Doc. Nos. 290,

291, 292, 293). She raises one assignment of error for our review.

                                Assignment of Error

        The trial court erred by denying Mrs. Kennedy’s motion for relief
        from judgment without a hearing. Civ.R. 60(B)(1); Sixth and
        Fourteenth Amendments to the United States Constitution;
        Judgment Entry (Aug. 9, 2019), Apx. A-1.

        {¶9} In her assignment of error, Kennedy argues that the trial court erred by

failing to grant her motion for relief from judgment under Civ.R. 60(B).

Specifically, she argues that the trial court should have vacated or reentered its June

11, 2019 judgment so Kennedy could timely appeal the denial of her postconviction-

relief action. We disagree.

                                  Standard of Review

        {¶10} Ordinarily, we will not disturb a trial court’s ruling on “[a] motion for

relief from judgment under Civ.R. 60(B) * * * on appeal absent a showing of abuse

of discretion.” Internatl. Bd. of Elec. Workers v. City Elec., L.L.C., 3d Dist. Van

Wert No. 15-08-13, 2009-Ohio-2433, ¶ 11-12, citing Griffey v. Rajan, 33 Ohio St.3d

                                          -4-
Case No. 8-19-44


75, 77, (1987). However, under the facts presented, the trial court determined that

Kennedy’s Civ.R. 60(B) motion was “an improper application of the rule and [was]

not within the [trial c]ourt’s power to grant.” (Doc. No. 288). That is—the trial

court determined that a Civ.R. 60(B) motion cannot be used to revive Kennedy’s

lost appeal where there are no substantive grounds for relief, which represents a

question of law. (See id.). We review questions of law de novo. Graham v.

Drydock Coal Co., 76 Ohio St.3d 311, 313 (1996), citing Nationwide Mut. Fire Ins.

Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 108 (1995) and Ohio Bell Tel. Co. v.

Pub. Util. Com., 64 Ohio St.3d 145, 147 (1992). See also State v. Vinson, 11th Dist.

Lake No. 2015-L-138, 2016-Ohio-7839, ¶ 15, (applying de novo-standard-of review

to Vinson’s attempt to revive his lost appeal).

                                      Analysis

       {¶11} Postconviction-relief actions filed under R.C. 2953.21 are civil

proceedings. State v. Stolzenburg, 3d Dist. Auglaize Nos. 2-99-09, 2-99-34, 2-99-

10, and 2-99-32, 2000-Ohio-1682, *2 (Mar. 31, 2000), appeal not allowed, 90 Ohio

St.3d 1402 (2000), citing State v. Nichols, 11 Ohio St.3d 40, 42 (1984).

Accordingly, the Ohio Rules of Civil Procedure govern the postconviction-relief

procedures. Id. Since Kennedy’s postconviction-relief action is civil, and because

she failed to timely file her notice of appeal under App.R. 3 and 4(A) of the June 11,

2019 judgment entry denying her postconviction relief, Kennedy appeared to have


                                         -5-
Case No. 8-19-44


no remedy under App.R. 5(A) to seek a delayed appeal from this court.2

Consequently, her trial counsel filed a motion for relief from judgment under Civ.R.

60(B) in order to appeal the trial court’s summary-judgment order. (Doc. No. 287).

         {¶12} Civ. R. 60(B) provides in its pertinent parts:

         On motion * * * the court may relieve a party or his legal
         representative from a final judgment * * * for the following reasons:
         (1) mistake, inadvertence, surprise or excusable neglect * * *. The
         motion shall be made within a reasonable time * * * not more than
         one year after the judgment * * * was entered or taken. A motion
         under this subdivision (B) does not affect the finality of a judgment or
         suspend its operation.

Civ.R. 60(B). See also Vinson at ¶ 14, citing Civ.R. 60(B). To prevail on a 60(B)

motion,

         the movant must demonstrate that: (1) the party has a meritorious
         defense or claim to present if relief is granted; (2) the party is entitled
         to relief under one of the grounds stated in Civ.R. 60(B)(1) through
         (5); and (3) the motion is made within a reasonable time, and, where
         the grounds of relief are Civ.R. 60(B)(1), (2), or (3), not more than
         one year after the judgment, order or proceeding was entered or taken.

GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976),

paragraph two of the syllabus. “All three elements must be established, and ‘the

test is not fulfilled if any one of the requirements is not met.’” ABN AMRO Mtge.



2
  As an avenue, App.R. 5(A)(1)(a) and (A)(2) regarding appeals in criminal proceedings would seem to bar
recourse to Civil Rule 60(B) for this purpose given the nature of the action is civil. State v. Boddie, 10th
Dist. Franklin No. 19AP-187, 2019-Ohio-4073, ¶ 10. “Meanwhile, the rules as applicable to civil cases, on
their own or as applicable through Criminal Rule 57, do not provide for delayed appeal.” Id., citing State ex
rel. Perotti v. Altiere, 11th Dist. Trumball No. 2004-T-0141, 2005-Ohio-1578, ¶ 3. See also Scaccia v.
Fidelity Investments, 2d Dist. Greene No. 2018-CA-5, 2019-Ohio-50, ¶ 32; Eschack v. Eschack, 9th Dist.
Summit No. 15490, 1992 WL 204760, *2 (Aug. 19, 1992).

                                                    -6-
Case No. 8-19-44


Group, Inc. v. Jackson, 2d Dist. Montgomery No. 20459, 2005-Ohio-297, ¶ 11,

quoting Strack v. Pelton, 70 Ohio St.3d 172, 174 (1994), citing GTE Automatic

Elec., Inc. at 151, and Fifth Third Bank of W. Ohio v. Shepard Grain Co., Inc., 2d

Dist. Miami No. 2003 CA 40, 2004-Ohio-1816, 2004 WL 758401, ¶ 10, quoting

Pelton at 174.

       {¶13} After a review of the record in this case, we cannot say that the trial

court erred by denying Kennedy’s Civ.R. 60(B) motion without a hearing.

Specifically, Kennedy’s motion for relief did not challenge the trial court’s

summary-judgment entry, but instead claimed that Kennedy’s counsel’s failure to

timely file an appeal was predicated on excusable neglect and relief which was

necessary for the sole purpose for Kennedy to appeal the trial court’s summary-

judgment order. Here, as in Vinson, the focus is on the question of timing of the

notice of appeal, and not an issue of substantive grounds. Vinson at ¶ 19. Boddie

at ¶ 9, citing Vinson at ¶ 19. Moreover, we cannot conclude that the trial court erred

in declining to provide Kennedy an alternative route to accomplish a delayed appeal

because the statutory-time-frame limitations for filing appeals are mandatory and

jurisdictional. Vinson at ¶ 18. This court does not have jurisdiction to entertain civil

appeals that are not timely filed. See, e.g., Sterling v. Ashtabula Cty. Pros., 11th

Dist. Ashtabula No. 2006-A-0022, 2006-Ohio-4421, ¶ 7.

       In Vinson, for example, ‘trial court determined it did not have
       authority to grant the [60(B) ] relief requested, as appellant was asking

                                          -7-
Case No. 8-19-44


       the court to vacate [an earlier] judgment in order to “reset the clock”
       and allow him to file a timely appeal.’

       ***

       ‘Appellant is attempting to use the Civ.R. 60(B) motion as a means to
       extend the time for perfecting an appeal, which is not permitted under
       Ohio law.’ Id. at ¶ 16, citing Key v. Mitchell, 81 Ohio St.3d 89, 90-
       91 (1998) (which in a different context had observed that 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 the time for perfecting an
       appeal from the original judgment”).

(Emphasis added.) Boddie at ¶ 11, quoting Vinson at ¶ 11. We conclude that

Kennedy is attempting to use Civ.R. 60(B) to seek review of an order where appeal

was not properly perfected.

       {¶14} Notwithstanding the foregoing, a trial court can vacate its own

judgment “for a valid reason on the record that falls within the guidelines of Civ.R.

60(B), even if the effect is to extend” the time for perfecting appeal. Steadley v.

Montanya, 67 Ohio St.2d 297, 299 (1981). However, here “t[he trial court had

previously found] that, on the face of the record, the evidence offered by [Kennedy]

fail[ed] to demonstrate substantive grounds for relief.” (Doc. No. 282 at 6).

Compare with GTE Automatic Elec., Inc. v. ARC Industries, 47 Ohio St.2d 146

(1976), paragraph two of the syllabus (to prevail on 60(B) motion, party must

demonstrate meritorious defense or claim if relief granted).        Under the facts

presented, Kennedy advanced no meritorious claim or defense different from those

previously asserted to the trial court as her 60(B) focus was to extend the time for

                                         -8-
Case No. 8-19-44


appeal. Steadley at 299, (concluding that the trial court’ oral promise to Montanya

to hold an evidentiary hearing was a valid basis under the guidelines of Civ.R. 60(B)

to vacate its prior judgment notwithstanding the ancillary effect of extending the

time for appeal). As such, Kennedy’s assignment of error is without merit, and

accordingly, overruled.

       {¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in her assignment of error, we affirm the judgment

of the trial court.

                                                                Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr




                                         -9-
