Court of Appeals of Ohio, Eleventh District, Portage
Appeals from the Portage County Court of Common Pleas. Case
No. 1993 CR 0294.
V. Vigluicci, Portage County Prosecutor, and Kristina Reilly,
Assistant Prosecutor (For Plaintiff-Appellee).
E. Mitchell, pro se, Marion Correctional Institution,
TIMOTHY P. CANNON, J.
Appellant, James E. Mitchell, appeals from the November 17,
2016 and January 30, 2017 judgments of the Portage County
Court of Common Pleas. In its November 17, 2016 judgment the
trial court denied appellant's pro se Petition for
Postconviction Relief/Motion to Withdraw Plea. In its January
30, 2017 judgment the trial court denied appellant's pro
se Motion for Appointed Counsel, Motion to Disqualify, Motion
for Judgment upon Multiple Claims, Motion for Findings of
Fact and Conclusions, and Motion for Notice of Filing of
Judgment(s). For the following reasons, the judgments of the
trial court are affirmed.
On February 3, 1994, appellant entered written pleas of
guilty to one count of Burglary, an aggravated felony of the
second degree, and one count of Gross Sexual Imposition, a
felony of the third degree. He filed a motion to withdraw his
guilty pleas pursuant to Crim.R. 32.1 on June 1, 1994. In the
motion, appellant argued his pleas were not entered
voluntarily due to the circumstances surrounding the entry of
his pleas, including pressure and coercion from his family.
On June 28, 1994, the trial court held a hearing on
appellant's motion and also held a sentencing hearing. On
June 29, 1994, the trial court denied appellant's motion
and sentenced him to three to fifteen years in prison for
Burglary and two years in prison for Gross Sexual Imposition,
to be served concurrently.
Appellant filed an appeal on July 18, 1994. His sole
assignment of error challenged the denial of his presentence
motion to withdraw his guilty pleas. State v.
Mitchell, 11th Dist. Portage No. 94-P-0070, 1995 WL
411830, *1 (June 23, 1995). This court affirmed
appellant's convictions. Id. at *3.
On November 14, 2016, appellant filed a pro se Petition for
Postconviction Relief/Motion to Withdraw Plea. Appellant
petitioned for postconviction relief pursuant to R.C.
2953.21, requesting the trial court vacate its judgment of
conviction and sentence. Appellant also requested the trial
court permit him to withdraw his guilty pleas pursuant to
Crim.R. 32.1. Appellant requested an evidentiary hearing. On
November 17, 2016, the trial court entered judgment and
summarily denied appellant's "Petition for
Postconviction Relief/Motion to Withdraw Plea."
On November 14, 2016, appellant also filed a Motion to
Disqualify and a Motion for Appointment of Counsel. He
requested the trial court disqualify the Portage County
Prosecutor's Office from representing the state of Ohio
during his postconviction proceeding.
On January 13, 2017, appellant filed a "Motion for
Judgment upon Multiple Claims Pursuant to Ohio Civil Rule
54(B); Motion for Findings of Fact and Conclusions of Law
Pursuant to Ohio Revised Coded 2953.21(C); Motion for Notice
of Filing of Judgment(s) Pursuant to Ohio Civil Rule 58(B)
[sic]." Appellant asserted the trial court failed to
issue findings of fact and conclusions of law when it denied
the petition for postconviction relief portion of his
November 14, 2016 motion; the trial court failed to rule on
each of the claims presented in his Petition for
Postconviction Relief/Motion to Withdraw Plea, pursuant to
Civ.R. 54(B), because the trial court did not "squarely
address" his motion to withdraw plea; and the clerk of
courts failed to perfect service of the trial court's
November 17, 2016 judgment, pursuant to Civ.R. 58(B). With
regard to the clerk's failure to perfect service,
appellant alleged he was not served with the November 17,
2016 judgment until he contacted the court seeking
notification of any rulings. Appellant requested the trial
court (1) "properly account for all of the evidence
offered in support of his motion to withdraw guilty plea, to
further consider the motion after accounting for all of the
evidence, and to 'squarely address' the evidentiary
issues"; (2) issue findings of fact and conclusions of
law on his claims for postconviction relief; and (3) endorse
the judgment with a direction to the clerk to serve appellant
pursuant to Civ.R. 58(B). The trial court summarily denied
this motion on January 30, 2017, as well as the Motion to
Disqualify and the Motion for Appointment of Counsel.
On February 3, 2017, appellant filed a notice of appeal from
the trial court's November 17, 2016 judgment entry, and
on February 22, 2017, appellant filed a notice of appeal from
the trial court's January 30, 2017 judgment entry. On
motion of appellant, the two appeals were consolidated.
Appellant raises nine assignments of error on appeal.
Appellant's first seven assignments of error pertain to
the trial court's November 17, 2016 judgment entry. The
remaining two assignments pertain to the trial court's
January 30, 2017 judgment entry.
Prior to addressing appellant's assignments of error, we
first determine whether this court has jurisdiction to
consider this appeal.
Appellee, the state of Ohio, argues appellant's entire
consolidated appeal is moot because he completed his 15-year
Portage County prison sentence in 2009 and failed to show he
suffers any collateral disability or loss of civil rights
from his convictions. In response, appellant argues a
petitioner for postconviction relief is not required to be in
custody or under sentence to be entitled to relief.
Appellee cites to State v. Wilson, 41 Ohio St.2d 236
(1975) in support of its argument. Wilson is
inapplicable to the present case. In Wilson, the
Supreme Court of Ohio held: "Where a defendant,
convicted of a criminal offense, has voluntarily paid the
fine or completed the sentence for that offense, an appeal is
moot when no evidence is offered from which an inference can
be drawn that the defendant will suffer some collateral
disability or loss of civil rights from such judgment or
conviction." Id. at syllabus. Subsequently, in
State v. Golston, 71 Ohio St.3d 224 (1994), the
Supreme Court narrowed the application of its holding in
Wilson to appeals from misdemeanor convictions.
Id. at 227. "[A] convicted felon, who has
completed his or her sentence during the pendency of an
appeal from the felony conviction, need not present evidence
that he or she will suffer some collateral legal disability
or loss of civil rights in order to maintain the
The holding in Golston is not directly applicable to
the present case because appellant did not complete his
sentence during the pendency of his direct appeal. Appellant
appeals the denial of a petition for postconviction relief he
filed more than 22 years after he was originally convicted.
However, a petitioner "does not have to be in custody or
under sentence in order to seek postconviction relief in the
form of vindication or removal of the stigma of a long
sentence fully served." State v. Turpin, 19
Ohio App.2d 116 (5th Dist.1969), paragraph three of the
syllabus; see also State v. Sherrills, 8th Dist.
Cuyahoga No. 61882, 1992 WL 6060, *1 (Jan. 16, 1992), citing
Turpin, supra, at 119. Accordingly, we conclude
appellant's appeal from the trial court's denial of
his postconviction petition is not moot.
Appellee next argues appellant's first seven assignments
of error are not properly before this court because his
appeal from the trial court's November 17, 2016 judgment
entry was untimely filed. Appellant argues his appeal from
the November 17, 2016 judgment is timely because the clerk of
courts failed to serve him with a copy of the judgment entry
as required by Civ.R. 58(B).
"Civ.R. 58(B) directs the clerk of courts to serve the
parties with notice of the judgment within three days of
entering judgment upon the journal. If Civ.R. 58(B) service
does not occur within three days, the time to appeal does not
begin to run until service is made and noted in the
appearance docket." Eyajan v. Eyajan, 11th
Dist. Ashtabula No. 2016-A-0071, 2017-Ohio-155, ¶5,
citing Coles v. Lawyers Title Ins. Corp., 163 Ohio
App.3d 659, 2005-Ohio-5360, ¶24 (6th Dist.). Service is
complete when the clerk has (1) served the notice and (2)
entered a "notation of the service in the appearance
docket." Civ.R. 58(B).
"The failure of the clerk to serve notice does not
affect the validity of the judgment or the running of the
time for appeal except as provided in App.R. 4(A)."
Id. App.R. 4(A) provides, in pertinent part:
(1) Subject to the provisions of App.R. 4(A)(3), a party who
wishes to appeal from an order that is final upon its entry
shall file the notice of appeal required by App.R. 3 within
30 days of that entry.
(3) In a civil case, if the clerk has not completed service
of the order within the three-day period prescribed in Civ.R.
58(B), the 30-day [period] referenced in App.R. 4(A)(1) * * *
[begins] to run on the ...