[Cite as State v. Dennard, 2019-Ohio-2601.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                        C.A. No.    17CA011199

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RAYMOND L. DENNARD                                   COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   13CR087422

                                 DECISION AND JOURNAL ENTRY

Dated: June 28, 2019



        CALLAHAN, Judge.

        {¶1}    Appellant, Raymond Dennard, appeals an order that dismissed his “Petition to

Vacate or Set Aside Sentence.” This Court affirms.

                                               I.

        {¶2}    In 2015, Mr. Dennard pleaded guilty to two counts of kidnapping, two counts of

rape, two counts of aggravated burglary, and sexual motivation specifications that accompanied

the kidnapping and aggravated burglary counts. The trial court sentenced him to prison terms

totaling fourteen years and classified him as a sexual predator under former R.C. 2950.09. Mr.

Dennard appealed, challenging his classification as a sexual predator. This Court affirmed.

State v. Dennard, 9th Dist. Lorain No. 15CA010743, 2016-Ohio-2760. On August 23, 2017, Mr.

Dennard filed a “Petition to Vacate or Set Aside Sentence,” in which he argued that his guilty

plea was not knowing and voluntary and that the trial court retroactively applied the Adam

Walsh Act, Am.Sub.S.B. No. 10, 2007 Ohio Laws 10. The trial court denied his motion, and Mr.
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Dennard filed this appeal.     His two assignments of error are combined for purposes of

disposition.

                                               II.

                             ASSIGNMENT OF ERROR NO. 1

       APPELLANT’S PLEA WAS NOT VOLUNTARILY, KNOWINGLY AND
       INTELLIGENTLY [ENTERED], THEREBY, IN VIOLATION OF DUE
       PROCESS AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

                             ASSIGNMENT OF ERROR NO. 2

       APPELLANT’S SENTENCE IS CONTRARY TO LAW, THEREBY, IN
       VIOLATION OF DUE PROCESS UNDER THE FOURTEENTH
       AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE
       I, SECTION 16 OF THE OHIO CONSTITUTION.

       {¶3}    Mr. Dennard’s assignments of error argue that the trial court erred by denying his

post-sentence motion. This Court disagrees.

       {¶4}    This Court must first consider the nature of the motion at issue in this appeal.

R.C. 2953.21(A)(1)(a) provides:

       Any person who has been convicted of a criminal offense or adjudicated a
       delinquent child and who claims that there was such a denial or infringement of
       the person’s rights as to render the judgment void or voidable under the Ohio
       Constitution or the Constitution of the United States * * * may file a petition in
       the court that imposed sentence, stating the grounds for relief relied upon, and
       asking the court to vacate or set aside the judgment or sentence or to grant other
       appropriate relief.

Faced with an irregular motion, this Court may construe the motion “into whatever category

necessary to identify and establish the criteria by which the motion should be judged.” State v.

Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12.

       {¶5}    To the extent that Mr. Dennard’s motion challenged his convictions, it is properly

characterized as a petition for postconviction relief. “A vaguely titled motion, including a

motion to correct or vacate a judgment or sentence,” may be treated as a petition for
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postconviction relief under R.C. 2953.21(A)(1) when “(1) the motion was filed subsequent to a

direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment

void, and (4) asked for a vacation of the judgment and sentence.” State v. Davis, 9th Dist.

Medina No. 15CA0004-M, 2015-Ohio-5182, ¶ 6, citing State v. Reynolds, 79 Ohio St.3d 158,

160 (1997).

       {¶6}    Mr. Dennard filed his petition on August 23, 2017, so the current version of the

postconviction statutes applies in this case. See State v. Stephens, 9th Dist. Summit No. 27957,

2016-Ohio-4942, ¶ 6. See also State v. McManaway, 4th Dist. Hocking No. 16CA8, 2016-Ohio-

7470, ¶ 11 (explaining that “the triggering event is the filing of the postconviction petition,

which determines the applicable version of the statute.”). R.C. 2953.21(A)(2) provides that a

petition for postconviction relief must be filed within 365 days of the date on which the transcript

is filed in a direct appeal or, if no direct appeal is taken, within 365 days of the expiration of the

time for filing an appeal. A trial court may only entertain an untimely petition when:

       Either the petitioner shows that the petitioner was unavoidably prevented from
       discovery of the facts upon which the petitioner must rely to present the claim for
       relief, or, subsequent to the period prescribed in division (A)(2) of section
       2953.21 of the Revised Code or to the filing of an earlier petition, the United
       States Supreme Court recognized a new federal or state right that applies
       retroactively to persons in the petitioner’s situation, and the petition asserts a
       claim based on that right.

R.C. 2953.23(A)(1)(a). A petitioner, other than one who challenges a sentence of death, must

also demonstrate by clear and convincing evidence “that, but for constitutional error at trial, no

reasonable factfinder would have found the petitioner guilty of the offense of which the

petitioner was convicted.” R.C. 2953.23(A)(1)(b). A trial court does not have jurisdiction to

hear an untimely petition for postconviction relief unless the requirements of R.C. 2953.23(A)

are met. State v. Daniel, 9th Dist. Summit No. 26670, 2013-Ohio-3510, ¶ 9.
                                                  4


       {¶7}      Mr. Dennard’s sentencing entry was dated February 4, 2015. The record in his

direct appeal was filed on June 23, 2015, so under R.C. 2953.21(A)(2), he had until June 22,

2016, to petition for postconviction relief.1 Mr. Dennard filed his petition on August 23, 2017,

more than one year after that deadline passed. He did not demonstrate by clear and convincing

evidence that the requirements of R.C. 2953.23(A)(1) were met. See State v. Demyan, 9th Dist.

Lorain No. 11CA010096, 2012-Ohio-3634, ¶ 4, quoting State v. Meek, 9th Dist. Lorain No.

02CA008134, 2003-Ohio-1803, ¶ 7 (observing that a petitioner who pleaded guilty instead of

going to trial cannot demonstrate the constitutional error required by R.C. 2953.23(A)(1)(b)).

Consequently, the trial court did not have jurisdiction to entertain his untimely petition. See

Daniel at ¶ 9.

       {¶8}      To the extent that Mr. Dennard’s motion challenges his classification as a sexual

predator, it must be characterized differently. Proceedings under former R.C. 2950.09 are civil

in character. See State v. Gowdy, 88 Ohio St.3d 387, 398 (2000), citing State v. Cook, 83 Ohio

St.3d 404, 423 (1998). For that reason, a motion that challenges a sexual predator determination

should not be classified as a petition for postconviction relief. State v. Wesley, 149 Ohio App.3d

453, 2002-Ohio-5192, ¶ 6 (6th Dist.). Accord State v. Booker, 8th Dist. Cuyahoga No. 95740,

2011-Ohio-2154, ¶ 9; State v. Kelly, 7th Dist. Mahoning No. 07 MA 27, 2007-Ohio-6228, ¶ 22.

       {¶9}      Under Crim.R. 57(B), a court may look to the Ohio Rules of Civil Procedure

when no applicable provision of the Ohio Rules of Criminal Procedure exists. See Schlee, 117

Ohio St.3d 153, 2008-Ohio-545, at ¶ 10. To the extent that Mr. Dennard’s motion challenged his

sexual predator classification, it could not be characterized as a petition for postconviction relief,

and no provision of the Ohio Rules of Criminal Procedure apply. That portion of Mr. Dennard’s


       1
           2016 was a leap year.
                                                  5


motion is most accurately characterized as a motion for relief from judgment under Civ.R. 60(B).

See Wesley at ¶ 6. See also Booker at ¶ 9; Kelly at ¶ 22. Motions filed under Civ.R. 60(B),

however, must “be made within a reasonable time, and for reasons (1), (2) and (3) not more than

one year after the judgment, order or proceeding was entered or taken.” Id. See also GTE

Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146 (1976), paragraph two of the

syllabus. Mr. Dennard did not demonstrate that his motion was filed within a reasonable time

and, consequently, the trial court did not err by denying it.

       {¶10} Mr. Dennard’s first and second assignments of error are overruled.

                                                 III.

       {¶11} Mr. Dennard’s assignments of error are overruled, and the judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                             LYNNE S. CALLAHAN
                                             FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

RAYMOND L. DENNARD, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting
Attorney, for Appellee.
