[Cite as Newell v. Gaul, 2012-Ohio-2395.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                    Nos. 97737 and 97738


                                  TIMOTHY NEWELL
                                              PLAINTIFF-APPELLANT

                                               vs.

                        JUDGE DANIEL GAUL, ET AL.
                                              DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-759860


        BEFORE:           Sweeney, J., Blackmon, A.J., and Jones, J.

        RELEASED AND JOURNALIZED:                    May 31, 2012
FOR APPELLANT

Timothy Newell, Pro Se
No. 153-518
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Charles E. Hannan, Jr., Esq.
Eighth Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
JAMES J. SWEENEY, J.:

      {¶1} Plaintiff-appellant Timothy Newell (“Newell”) appeals the court’s denial of

his summary judgment motion and the dismissal of his complaint for declaratory relief

and an injunction.   After reviewing the facts of the case and pertinent law, we affirm.

      {¶2} In December 1978, Newell was sentenced to prison for various sex

offenses. Since that time, Newell has filed a litany of appeals and habeus corpus actions

stemming from these crimes.     See, e.g., State v. Newell, 8th Dist. Nos. 90738 and 90739,

2008-Ohio-3687.      On direct appeal, Newell’s kidnapping convictions were reversed and

his remaining convictions were affirmed. State v. Newell, 8th Dist. Nos. 40334 and

40335 (Feb. 14, 1980).      Subsequently, Newell’s prison sentence was reduced to a

maximum of 470 years.

      {¶3} On July 18, 2011, Newell filed a complaint for declaratory judgment,

preliminary injunction, and permanent injunction against Cuyahoga County Common

Pleas Judge Daniel Gaul and Clerk of Court Gerald E. Fuerst. Newell alleges that

continued execution of his prison sentence is unlawful, because he was delievered to

prison on December 28, 1978, which is one day before the court filed the judgment entry

of conviction and sentence in his cases.       Newell also filed a motion for summary

judgment.

      {¶4} On December 6, 2011, the court denied Newell’s summary judgment

motion and dismissed his complaint for failure to state a claim for relief under Civ.R.

12(B)(6).   Newell appeals and raises three assignments of error for our review.
       {¶5} I.    “The trial court erred to the prejudice of appellant by granting

defendant’s motion to dismiss where the trial court considered matters outside of the

pleadings.”

       {¶6} II.    “The trial court erred to the prejudice of appellant by overruling

appellant’s motion for summary judgment under the doctrine of res judicata.”

       {¶7} III. “The trial court’s denial of appellant’s complaint is void or voidable

because the judge rendering the judgment had no jurisdiction over the case at the time

judgment was rendered, whereas, no journal entry tranferring the case to another judge

had been entered on the journal by the clerk of the court.”

       {¶8} We first address Newell’s second assignment of error.

       {¶9} Appellate review of summary judgment is de novo. Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The Ohio Supreme Court set forth

the test for determining whether summary judgment is appropriate in Zivich v. Mentor

Soccer Club, 82 Ohio St.3d 367, 369–370, 696 N.E.2d 201 (1998), as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is

       no genuine issue of material fact, (2) the moving party is entitled to

       judgment as a matter of law, and (3) reasonable minds can come to but one

       conclusion and that conclusion is adverse to the nonmoving party, said party

       being entitled to have the evidence construed most strongly in his favor.

       Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d

       1196, paragraph three of the syllabus. The party moving for summary

       judgment bears the burden of showing that there is no genuine issue of
       material fact and that it is entitled to judgment as a matter of law. Dresher

       v. Burt (1996), 75 Ohio St.3d 280, 292–293, 662 N.E.2d 264, 273–274.

       {¶10}   Additionally, in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),

paragraph nine of the syllabus, the Ohio Supreme Court explained the doctrine of res

judicata:

       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 proeeding 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 trial, which resulted in that judgment of
       conviction, or on appeal from that judgment.

       {¶11}    In the instant case, Newell filed a direct appeal and failed to raise this

alleged sentencing issue.   Under res judicata, we are prohibited from entertaining this

argument in the case at hand.    Therefore, the court properly denied Newell’s summary

jugment motion and his second assignment of error is overruled.

       {¶12}   We now turn to Newell’s first and third assignments of error.   We review

a court’s granting a motion to dismiss pursuant to Civ.R. 12(B)(6) de novo. Tisdale v.

Javitch, Block & Rathbone, 8th Dist. No. 83119, 2003-Ohio-6883. When ruling on a

motion to dismiss for failure to state a claim, the court must assume that all factual

allegations in the complaint are true, and it must appear beyond a reasonable doubt that

the plaintiff can prove no set of facts warranting recovery. Tulloh v. Goodyear Atomic

Corp., 62 Ohio St.3d 541, 584 N.E.2d 729 (1992).

       {¶13} The instant case is analagous to Moore v. Mason, 8th Dist. No. 84821,

2004-Ohio-1188, in which a criminal defendant sought a declaratory judgment that his
prison sentence was void and unenforceable because the journalization of the court’s

sentencing entry was procedurally deficient.       In Moore, this court affirmed the trial

court’s dismissal of the complaint for failure to state a claim under Civ.R. 12(B)(6),

because declaratory relief was not the proper vehicle for this argument. Id. at ¶ 16.

       A declaratory judgment action * * * cannot be used as a substitute for an

       appeal or as a collateral attack upon a conviction.    Declaratory relief “does

       not provide a means whereby previous judgments by state or federal courts

       may be reexamined, nor is it a substitute for appeal or post conviction

       remedies.” Shannon v. Sequeechi (C.A.10, 1966), 365 F.2d 827, 829. A

       declaratory judgment action is simply not part of the criminal appellate

       process. State v. Brooks (1999), 133 Ohio App.3d 521, 525, 728 N.E.2d

       1119.

Id. at ¶ 14.

       {¶14}    Accordingly, the court did not err by dismissing Newell’s complaint for

failure to state a claim and his first and third assignments of error are overruled.

       {¶15}     Judgment affirmed.



       It is ordered that appellees recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




JAMES J. SWEENEY, JUDGE

PATRICIA ANN BLACKMON, A.J., and
LARRY A. JONES, SR., J., CONCUR
