[Cite as State v. Allen, 2013-Ohio-1409.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :      Hon. Patricia A. Delaney, J.
                                               :      Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :      Case No. CT2013-0006
JOHN D. ALLEN                                  :
                                               :
                                               :
       Defendant-Appellant                     :      OPINION


CHARACTER OF PROCEEDING:                           Criminal Appeal from the Muskingum
                                                   County Court of Common Pleas, Case No.
                                                   CR2011-0109



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            March 25, 2013




APPEARANCES:

For Appellant:                                        For Appellee:
JOHN D. ALLEN, #614204                                ROBERT L. SMITH
Hocking Correctional Facility                         Assistant Prosecuting Attorney
Post Office Box 59                                    27 North Fifth Street
Nelsonville, OH 45764                                 Zanesville, OH 43701
MUSKINGUM COUNTY CASE NO. CT2013-0006                                                 2

Baldwin, J.

      {¶1} Appellant John D. Allen appeals a judgment of the Muskingum County

Common Pleas Court overruling his Civ. R. 60(B) motion for relief from judgment.

Appellee is the State of Ohio.

                              STATEMENT OF FACTS AND CASE

      {¶2} On October 7, 2011, appellant was convicted of having a weapon while

under disability (R.C. 2923.13(A)(3)) and obstructing official business (R.C.

2921.31(A)) following jury trial in the Muskingum County Common Pleas Court. He

was sentenced on October 17, 2011, to three years of incarceration for having a

weapon under disability and one year of incarceration for obstructing official business,

to be served consecutively.

      {¶3} Appellant filed a direct appeal of the judgment of conviction and

sentence to this Court. He voluntarily dismissed this appeal.

      {¶4} On January 4, 2013, appellant filed a motion for relief from judgment

pursuant to Civ. R. 60(B)(2), (3) and (5).    The trial court summarily overruled the

motion on January 10, 2013. Appellant appeals to this Court, assigning five errors:

      {¶5} I. DEFECTIVE INDICTMENT AND INSUFFICIENT EVIDENCE.

      {¶6} II. NO MIRANDA WARNING WAS GIVEN TO MR. ALLEN.

      {¶7} III. CONFLICT OF INTEREST.

      {¶8} IV. ILLEGAL SEARCH AND SEIZURE.

      {¶9} V. SPEEDY TRIAL VIOLATION.
MUSKINGUM COUNTY CASE NO. CT2013-0006                                                  3


       {¶10} Although appellant assigns five errors to the underlying judgment of

conviction and sentence, the only issue properly before this Court is whether the trial

court erred in overruling his motion for relief from judgment.

       {¶11} Appellant filed his motion to vacate pursuant to Civ. R. 60(B), which

allows relief from a judgment based on mistake, inadvertence, excusable neglect,

newly discovered evidence, fraud, or any other reason justifying relief from the

judgment. Crim. R. 57(B) permits a trial court in a criminal case to look to the Rules of

Civil Procedure for guidance where no applicable Rule of Criminal Procedure exists.

State v. Schlee, 117 Ohio St. 3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶10. A motion

for relief from judgment may be treated as a petition for postconviction relief even

when the motion has been unambiguously presented as a Civ. R. 60(B) motion. Id. at

syllabus.

       {¶12} Appellant’s motion for relief from judgment argued that his conviction

was void because the indictment was defective and not supported by sufficient

evidence, he was not given Miranda warnings, the judge who signed the search

warrant and the judge who tried the case had conflicts of interest, the search and

seizure was illegal, and his speedy trial rights were violated. All of these issues could

have been raised in a petition for postconviction relief pursuant to R.C. 2953.21(A)(1)

and Crim. R. 35, because appellant’s petition was (1) filed subsequent to his 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. See Schlee, supra, at

¶12. Therefore, the motion was improperly filed as a Civ. R. 60(B) motion in a criminal

case because a remedy was available through R.C. 2953.21(A)(1) and Crim. R. 35.
MUSKINGUM COUNTY CASE NO. CT2013-0006                                                   4


       {¶13} Because the trial court summarily overruled appellant’s petition, it is not

clear if the trial court overruled the motion because it was improperly filed as a Civ. R.

60(B) motion rather than a petition for postconviction relief, or whether the trial court

treated the motion as a petition for postconviction relief and dismissed it on the merits.

Assuming arguendo that the trial court treated the motion as a petition for

postconviction relief, the trial court did not err in dismissing the petition. “Under the

doctrine of res judicata, a final judgment of conviction bars the convicted defendant

from raising and litigating in any proceeding, except an appeal from that judgment, any

defense or claimed lack of due process that was raised or could have been raised by

the defendant at the trial which resulted in that judgment of conviction or on an appeal

from that judgment.” State v. Perry, 10 Ohio St. 2d 175, 180-181, 226 N.E.2d 104

(1967). All of the issues raised by appellant could have been raised on direct appeal

to this Court, and are therefore barred by res judicata.
MUSKINGUM COUNTY CASE NO. CT2013-0006                                          5




      {¶14} Appellant’s assignments of error are overruled.   The judgment of the

Muskingum County Common Pleas Court is affirmed. Costs to appellant.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.



                                    HON. CRAIG R. BALDWIN



                                    HON. WILLIAM B. HOFFMAN



                                    HON. PATRICIA A. DELANEY


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