State v. Nichols

Clifford F. Brown, J.,

dissenting. In reaching its decision the majority has chosen to ignore the plain language of R.C. 2953.23(B) and instead has seized upon dictum expounded in State v. Milanovich (1975), 42 Ohio St. 2d 46 [ 71 O.O.2d 26 ]. For the following reasons I find such reliance unfounded and, therefore, dissent.

Although postconviction relief proceedings contain some aspects of civil actions, such as the doctrine of res judicata and provision for summary judgment, res judicata is applicable by reason of State v. Perry (1967), 10 Ohio St. *44 2d 175 [ 39 O.O.2d 189 ], and summary judgment is available because it is provided by R.C. 2953.21 which, in pertinent part, states:

“(D) * * * Within twenty days from the date the issues are made up either party may move for summary judgment as provided in section 2311.041 of the Revised Code. A bill of exceptions is not necessary in seeking summary judgment. The right to such judgment must appear on the face of the record.”

Provision for summary judgment, therefore, is not dependent upon whether postconviction relief proceedings are given the label of either criminal or civil proceedings.

The judgment of this court is based solely upon bad law comprising unfortunate obiter dictum contained in Milanovich, supra, at 49 , “[u]nder R.C. 2953.21, an action for postconviction relief is a civil proceeding, * * *.” Such dictum was unnecessary for the decision reached in Milanovich . It was an off-the-cuff rumination, a gratuitous and fortuitous expression, made without any analysis of its consequences and potential misapplication as in the instant case. It was a result of judicial day-dreaming and wool-gathering. We should not crystallize it as law so as to repeal a valid statute, the last clause of R.C. 2953.23(B).

By relying on the foregoing dictum in Milanovich the court has completely ignored the language of R.C. 2953.23(B) which provides for the appeal of postconviction relief proceedings. R.C. 2953.23(B) states in its entirety, “[a]n order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to Chapter 2953. of the Revised Code.”

R.C. 2953.23 became effective December 9, 1967. At that time the rules governing criminal appeals were contained in R.C. Chapter 2953, as the Rules of Appellate Procedure were not in existence. 1

The legislature by the very wording of R.C. 2953.23(B) clearly mandated its intent to have the appeal of postconviction relief proceedings governed by R.C. Chapter 2953 which deals with appeals and other postconviction remedies. This together with subsequently enacted App. R. 5 governing “appeals” by leave of court in criminal cases harmonizes perfectly with and implements R.C. Chapter 2953, particularly R.C. 2953.05 thereof.

R.C. 2953.05 sets forth the specific right of delayed appeal. There can be little doubt that when the legislature enacted R.C. 2953.23(B) it intended postconviction relief appeals to be afforded the rights of a delayed appeal, since by that section’s language final judgments “may be appealed pursuant to Chapter 2953. of the Revised Code.” How this court today can totally ignore R.C. 2953.05 is beyond comprehension. R.C. 2953.05 states in pertinent part: “Appeal under section 2953.04 of the Revised Code, may be filed as a matter of right within thirty days after judgment and sentence * * *. After the expiration of the thirty day period as above provided, such appeal may be taken only by leave of the court to which the appeal is taken. * * *”

*45 In Milanovich there was no delayed appeal to the court of appeals from the judgment of the trial court denying postconviction relief, and no issue concerning a delayed appeal, but there was an appeal as of right within thirty days. The appeal to the court of appeals involved only the legal issue “whether petitioner was entitled to a formal evidentiary hearing under R.C. 2953.21 et seq. ” Id. at 47 . “The Court of Appeals reversed the judgment and remanded the cause for an evidentiary hearing.” Id. at 48 . The syllabus of Milanovich reveals that there was no consideration of any issue of the right of petitioner to a delayed appeal or concerning any issue whether R.C. 2953.21 et seq. is a civil or criminal proceeding. This is revealed by close examination of the two paragraphs of the syllabus which read:

“1. Where a claim raised by a petition for postconviction relief under R.C. 2953.21 is sufficient on its face to raise an issue that petitioner’s conviction is void or voidable on constitutional grounds, and the claim is one which depends upon factual allegations that cannot be determined by examination of the files and records of the case, the petition states a substantive ground for relief.

“2. Upon a motion by the prosecuting attorney for summary judgment, a petition for postconviction relief shall be dismissed where the pleadings, affidavits, files and other records show that there is no genuine issue as to any material fact, and there is no substantial constitutional issue established.”

It is no coincidence that App. R. 5, which is at issue in this case, provides for the grant of delayed appeals in criminal actions in language similar to that provided for delayed appeals in R.C. 2953.05. This court’s decision today is raw judicial legislation, not judicial interpretation of a statute. While there is no small amount of confusion associated with what rules do and do not apply in the area of postconviction relief, this court should not take it upon itself to help simplify the area by ignoring the mandate of the legislature. I, therefore, would reverse the judgment of the court of appeals, which rests erroneously on dictum in Milanovich , and remand the cause to that court for determination pursuant to App. R. 5.

The Rules of Appellate Procedure became effective July 1, 1971.