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State v. Dunkle

Court of Appeals of Ohio, Fifth District, Licking

July 16, 2019

STATE OF OHIO, Plaintiff - Appellee
v.
DAVID E. DUNKLE, Defendant-Appellant

          Appeal from the Licking County Court of Common Pleas, Case No. 86CR16341

          For Plaintiff-Appellee WILLIAM C. HAYES Licking County Prosecutor By: PAULA M. SAWYERS Assistant Prosecuting Attorney

          For Defendant-Appellant DAVID E. DUNKLE, pro se #R138316

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.

          OPINION

          BALDWIN, J.

         {¶1} David E. Dunkle appeals the Licking County Common Pleas Court's denial of his Motion to Vacate Void Sentence as Contrary to Law. Appellee is the State of Ohio.

         STATEMENT OF FACTS AND THE CASE

         {¶2} A review of the details of the case concluding with charges against Appellant is unnecessary for the disposition of this appeal and is therefore omitted.

         {¶3} In 1986, Appellant was convicted of multiple counts of rape and sentenced to consecutive life sentences by the Licking County Court of Common Pleas.

         {¶4} In 2005, Appellant filed a pro se motion to file a delayed appeal. He argued the trial court and counsel failed to advise him of his right to appeal, pursuant to Criminal Rule 32. We denied the motion. State v. Dunkle, 5th Dist. Licking No. 05-CA-37.

         {¶5} In October of 2010, Appellant sought leave for a delayed appeal on the same grounds, which we also denied. State v. Dunkle, 5th Dist. Licking No. 10-CA-110. Also in 2010, Appellant filed a pro se "Motion to Suspend" his sentence with the trial court, which the trial court construed as a motion for judicial release and overruled. Appellant sought reconsideration of that decision, which was denied. We dismissed Appellant's appeal therefrom in State v. Dunkle, 5th Dist. Licking No. 11-CA-42, 2011-Ohio-6779. We found the trial court's decision was not a final appealable order and no authority exists for a motion to reconsider a judgment of the trial court in a criminal case. Id.

         {¶6} On May 17, 2012, Appellant filed a pro se "Complaint for Contempt of Court Order" with the trial court. In his motion, he argued the Parole Board breached his original plea agreement. The trial court denied the motion. We found the trial court did not err in overruling his complaint. State v. Dunkle, 5th Dist. Licking No. 13-CA-2, 2013-Ohio-2007.

         {¶7} On September 4, 2012, Appellant filed a Motion to Correct Sentence with the trial court and argued that, during his 1986 sentencing, the trial court failed to comply with Criminal Rule 32. Appellant requested the trial court resentence him so that he could appeal his original sentence. The trial court considered Appellant's motion to be a petition for post-conviction relief and denied the petition as untimely. We affirmed the trial court's judgment in State v. Dunkle, 5th Dist. Licking No. 12-CA-80, 2013-Ohio-2299.

         {¶8} On July 11, 2013, Appellant filed a complaint with the Court of Claims of Ohio alleging that the Ohio Department of Rehabilitation and Correction breached a plea agreement he entered into with the State of Ohio. The Court of Claims granted ODRC's motion to dismiss Appellant's complaint. The Tenth District Court of Appeals affirmed the trial court's decision in ...


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