Court of Appeals of Ohio, Eleventh District, Lake
Appeal from the Lake County Court of Common Pleas. Case No.
14 CR 000525. Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Karen A.
Sheppert, Assistant Prosecutor (For Plaintiff-Appellee).
V. Rock, Jr., pro se (Defendant-Appellant).
TIMOTHY P. CANNON, J.
Appellant, David V. Rock, Jr. appeals from the December 28,
2016 judgment of the Lake County Court of Common Pleas,
denying his Civ.R. 60(B) motion for relief from judgment. For
the following reasons, the trial court's decision is
On March 30, 2015, the Lake County Court of Common Pleas
entered a judgment convicting appellant of one count of
operating a vehicle under the influence ("OVI"), a
third-degree felony in violation of R.C. 4511.19(A)(1)(a),
and an accompanying R.C. 2941.1413 specification for having
been convicted of five or more OVI offenses within the
previous twenty years. Appellant was sentenced to serve
thirty-six months in prison for the underlying OVI and four
years for the repeat-offender specification, to run
consecutive to each other and consecutive to the sentence
imposed by the Ashland County Court of Common Pleas in case
Appellant challenged his sentence on appeal from the trial
court's March 30, 2015 judgment. State v. Rock,
11th Dist. Lake No. 2015-L-047, 2015-Ohio-4639. We held the
trial court failed to make the required findings pursuant to
R.C. 2929.14(C)(4) in order to run appellant's sentences
for the OVI and specification consecutive to his Ashland
County sentence. Id. at ¶11.
Upon remand from this court, the trial court held a hearing
on December 7, 2015. The trial court entered judgment on
December 8, 2015, and declined to make the required findings
for imposing consecutive sentences. The trial court ordered
appellant's sentence for the OVI and specification be
served concurrently with the sentence imposed by the Ashland
County Court of Common Pleas. State v. Rock, 11th
Dist. Lake No. 2016-L-011, 2016-Ohio-8516, ¶4.
Appellant filed a motion for leave to file a delayed appeal
from the trial court's December 8, 2015 judgment, which
this court granted. Id. at ¶5. We affirmed the
trial court's judgment. Id. at ¶22.
On June 10, 2016, appellant filed a petition for
postconviction relief pursuant to R.C. 2953.21, requesting
that his March 2015 conviction be vacated. Appellee, the
state of Ohio, filed a response on July 13, 2016. On July 26,
2016, the trial court denied appellant's petition,
finding it was untimely filed and that appellant failed to
assert an exception to the timeliness requirement that would
justify delayed relief. Appellant did not appeal that
On December 7, 2016, appellant filed a Civ.R. 60(B) motion
for relief from judgment. Appellant moved the trial court to
vacate its July 26, 2016 judgment, pursuant to Civ.R.
60(B)(1) and (5), asserting the trial court should have
applied the "three-day mail box rule" to
appellant's petition for postconviction relief. Appellant
maintained utilizing the three-day mailbox rule would have
rendered his petition timely. He indicated, when he filed the
petition, that he was incarcerated and, in prison, the
"mail was placed to a halt after 7:00 a.m., Friday June
3rd, 2016, and does not resume until Monday June
6th." Appellee filed a response on December 16, 2016.
The trial court denied the motion on December 28, 2016.
On January 17, 2017, appellant filed a timely notice of
appeal from the trial court's December 28, 2016 judgment.
Appellant asserts a sole assignment of error, which states:
"The trial court committed prejudicial error by not
granting relief from judgment and applying Civ.R. 6(E), which
would have allowed R.C. 2953.21 postconviction relief
petition to be timely. [sic] This is a violation of the
Fourteenth Amendment to the United States Constitution."
In response, appellee argues appellant is using his Civ.R.
60(B) motion in place of a timely filed appeal from the trial
court's judgment denying his petition for postconviction
relief. Appellee further argues appellant has failed to