State v. Miller , 2021 Ohio 1149 ( 2021 )

[Cite as State v. Miller, 2021-Ohio-1149.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2020 CA 00132
PETER MILLER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.20MI00114
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 2, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO
Stark County Prosecutor MARK F. GRAZIANI
BY: KATHLEEN O. TATARSKY GRAZIANI LAW, LLC
Assistant Prosecutor Box 1158
110 Central Plaza South, Ste.510 Norton, OH 44203
Canton, OH 44702
[Cite as State v. Miller, 2021-Ohio-1149.]
Gwin, P.J.
{¶1} Appellant Peter Miller appeals the August 25, 2020 judgment entry of the
Stark County Court of Common Pleas denying his motion for relief from judgment.
Appellee is the State of Ohio.
Facts & Procedural History
{¶2} In 2002, appellant pled guilty and was convicted of one count of aggravated
robbery pursuant to R.C. 2911.01(A)(1)(3) and three counts of aggravated trafficking n
marijuana pursuant to R.C. 2925.03(A)(1). On July 1, 2020, appellant filed a petition for
relief from federal and state firearms disability pursuant to R.C. 2923.14. Appellant did
not request a hearing, and the petition shows no proof of service on the Stark County
Prosecutor. The trial court denied the motion on July 14, 2020. Appellant did not appeal
this denial.
{¶3} Appellant filed a motion for relief from judgment pursuant to Civil Rule
60(B)(5) on July 22, 2020, asking the court to reconsider its July 14th entry. The motion
contains no proof of service on the Stark County Prosecutor. The trial court held a hearing
on the motion on August 24, 2020. The trial court issued a judgment entry on August 25,
2020 denying appellant’s motion. The trial court stated, “petitioner has previously been
convicted of aggravated robbery and three counts of aggravated trafficking in Summit
County. He served approximately four and a half years in prison. Based on the best
interest of the public, the Court hereby DENIES the Petitioner’s motion.”
{¶4} Appellant appeals the August 25, 2020 judgment entry of the Stark County
Court of Common Pleas and assigns the following as error:
Stark County, Case No. 2020 CA 00132 3
{¶5} “I. THE TRIAL COURT ERRED BY FAILING TO CONTINUE THE MATTER
WHEN IT LEARNED AT TRIAL THAT THE PROSECUTOR HAD NEITHER BEEN
SERVED WITH THE INITIAL PLEADING NOR INVESTIGATED THE MATTER, AS
SPECIFICALLY REQUIRED BY THE LANGUAGE IN R.C. 2923.14(C).
{¶6} “II. THE TRIAL COURT ERRED BY IGNORING THE LEGISLATURE’S
INTENT IN CREATING R.C. 2923.14 AS THE VEHICLE FOR RELIEF FROM A
FIREARMS DISABILITY STEMMING FROM A FELONY CONVICTION.
{¶7} “III. THE TRIAL COURT ERRED WHEN IT DENIED THE PETITION
WITHOUT CASE LAW OR FACTUAL SUPPORT.”
I.
{¶8} In his first assignment of error, appellant contends the trial court erred by
failing to continue the hearing when it learned appellee was not served with the initial
pleading, nor investigated the matter, pursuant to R.C. 2923.14(C).
{¶9} R.C. 2923.14(C) provides, “a copy of the application shall be served on the
county prosecutor. The county prosecutor shall cause the matter to be investigated and
shall raise before the court any objections to granting relief that the investigation reveals.”
Neither the original application, nor the Civil Rule 60(B)(5) motion, contains a proof of
service upon appellee. The pleadings do not contain a praecipe for service to the clerk
of courts. There is nothing in the plain language of the statute stating that it is the trial
court’s responsibility to serve a copy of the application on the county prosecutor.
Accordingly, any argument as to the lack of proper investigation by appellee or as to the
trial court’s failure to continue the case to serve appellee, is subject to the doctrine of
invited error. Appellant invited any error by failing to serve a copy of the petition on
Stark County, Case No. 2020 CA 00132 4
appellee or including a praecipe for the clerk of courts to serve the petition upon appellee.
Under the invited-error doctrine, a party will not be allowed to take advantage of an error
that he or she has invited or induced the trial court to make. State ex rel. Beaver v.
Kontech, 83 Ohio St.3d 519, 700 N.E.2d 1256 (1998).
{¶10} Additionally, there is no written motion to continue by appellant in the record.
It is unclear to this Court whether appellant made a motion to continue during the August
hearing or what discussion was had about a continuance at the hearing, because a
transcript of the August 24, 2020 hearing was not submitted with this appeal. This Court
also does not know what arguments or objections counsel for appellee made at the
hearing because the transcript was not submitted. Pursuant to App.R. 9(B)(1), “[i]it is the
obligation of the appellant to ensure that the proceedings the appellant considers
necessary for inclusion in the record, however those proceedings were recorded, are
transcribed in a form that meets the specifications of App.R. 9(B)(6).” When portions of
the transcript necessary for resolutions of assigned errors are omitted from the record,
the reviewing court has nothing to pass upon and thus, as to those assigned error, the
court has no choice but to presume the validity of the lower court’s proceedings, and
affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).
{¶11} A review of the transcript from the hearing is necessary to order to resolve
appellant’s assignment of error. Accordingly, we must presume the regularity of the
proceedings, and affirm. Appellant’s first assignment of error is overruled.
II. & III.
{¶12} In his second and third assignments of error, appellant argues the trial court
abused its discretion in denying his petition. The denial of an application for relief from
Stark County, Case No. 2020 CA 00132 5
disability is reviewed under an abuse of discretion standard. In re Chrosniak, 8th Dist.
Cuyahoga No. 105459, 2017-Ohio-7408.
{¶13} We first note that appellant did not appeal the denial of the petition. Rather
than filing an appeal of the denial of the petition, he filed a motion for relief from judgment
pursuant to Civil Rule 60(B)(5). “It is well established that a Civ.R. 60(B) motion cannot
be used as a substitute for an appeal.” U.S. Bank, N.A. v. Avery, 5th Dist. Richland No.
14CA89, 2015-Ohio-3908, citing Harris v. Anderson, 109 Ohio St.3d 101, 2006-Ohio-
1934, 846 N.E.2d 43; Key v. Mitchell, 81 Ohio St.3d 89, 689 N.E.2d 548 (1998); PNC
Bank, N.A. v. JPMorgan Chase Bank, N.A., 5th Dist. Delaware No. 12 CAE 07 0042,
2013-Ohio-1046.
{¶14} The arguments made by appellant in his Civil Rule 60(B)(5) motion were
issues cognizable on direct appeal from the July 14, 2020 judgment entry, which
constituted a final appealable order in this case. Since appellant had the opportunity, but
failed, to pursue a direct appeal on this judgment entry and issues, the application of Civil
Rule 60(B)(5) is barred and the trial court did not abuse its discretion in denying the
application. Tarullo v. Thompson, 5th Dist. Delaware No. 18 CAE 03 0023, 2018-Ohio-
3378.
{¶15} Additionally, as detailed above, appellant failed to submit a transcript of the
hearing with this appeal. A review of the transcript is necessary in order to resolve
appellant’s assignments of error. Accordingly, we must presume the regularity of the
proceedings, and affirm. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d
384 (1980).
Stark County, Case No. 2020 CA 00132 6
{¶16} Finally, appellant contends because it has been fifteen years from his
conviction and he has been a law-abiding citizen since then, the trial court abused its
discretion in denying his petition. He suggests that because fifteen years has elapsed
and he met the remaining criteria in R.C. 2923.14, the trial court was required to grant his
petition. However, R.C. 2923.14 contains no such fifteen-year provision. Rather, the
statute provides the trial court has the discretion to grant the application, as indicated by
the legislature’s use of the term “may” instead of “shall” in the statute. State v. Lerch, 4th
Dist. Washington No. 15CA39, 2016-Ohio-2791 (by using the word “may,” the General
Assembly has drafted a permissive statute); In re Allender, 11th Dist. Portage No. 2017-
P-0090, 2018-Ohio-2147.
{¶17} Appellant’s second and third assignments of error are overruled.
{¶18} Based on the foregoing, appellant’s assignments of error are overruled.
Stark County, Case No. 2020 CA 00132 7
{¶19} The August 25, 2020 judgment entry of the Stark County Court of Common
Pleas is affirmed.
By Gwin, P.J.,
Wise, John, J., and
Wise, Earle, J., concur
.