Key v. Mitchell

[This opinion has been published in Ohio Official Reports at 

.]




               KEY, APPELLANT, v. MITCHELL, WARDEN, APPELLEE.
                      [Cite as Key v. Mitchell, 

.]
Appellate procedure—Appeal dismissed when not properly perfected pursuant to
         S.Ct.Prac.R. II(2)(A)(1).
    (No. 97-1836—Submitted January 21, 1998—Decided February 18, 1998.)
     APPEAL from the Court of Appeals for Trumbull County, No. 96-T-5548.
                                  __________________
         {¶ 1} In 1986, the Summit County Court of Common Pleas convicted
appellant, Phillip R. Key, of complicity to commit aggravated robbery and
sentenced him to a prison term of five to twenty-five years. In 1989, the common
pleas court convicted Key of several offenses, including three counts of aggravated
robbery, and sentenced him accordingly.
         {¶ 2} In 1996, Key filed a petition in the Court of Appeals for Trumbull
County for a writ of habeas corpus. Key claimed that his 1986 conviction was void
because the presiding judge of the common pleas court lacked jurisdiction to assign
a judge from the probate division to his criminal case and the probate judge lacked
jurisdiction to try, convict, and sentence him. Key further claimed that his 1989
aggravated robbery convictions were void because his indictment did not properly
charge these offenses. In December 1996, the court of appeals granted the Civ.R.
12(B)(6) motion of appellee, Trumbull Correctional Institution Warden Betty
Mitchell, and dismissed Key’s petition. Instead of appealing this judgment, Key
filed a motion to vacate the judgment pursuant to Civ.R. 60(B). In July 1997, the
court of appeals overruled Key’s motion.
         {¶ 3} The cause is now before this court upon Key’s purported appeal as of
right.
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                              SUPREME COURT OF OHIO




        Phillip R. Key, pro se.
        Betty D. Montgomery, Attorney General, and D.J. Hildebrandt, Assistant
Attorney General, for appellee.
                                  __________________
        Per Curiam.
        {¶ 4} In order to perfect an appeal from a court of appeals to the Supreme
Court other than in a certified conflict case, the appellant must file a notice of appeal
in this court within forty-five days from the entry of judgment being appealed.
S.Ct.Prac.R. II(2)(A)(1). For the reasons that follow, we dismiss Key’s appeal
because it was not properly perfected pursuant to S.Ct.Prac.R. II(2)(A)(1).
        {¶ 5} First, Key did not file a timely appeal from the December 1996 court
of appeals judgment dismissing his habeas corpus petition. In this appeal, Key
challenges the December 1996 judgment dismissing his petition rather than the July
1997 court of appeals entry denying his Civ.R. 60(B) motion for relief from
judgment. Key did not file a notice of appeal in this court within forty-five days
from the December 1996 judgment. Second, Key’s Civ.R. 60(B) motion for relief
from judgment did not extend the time for Key to appeal the December 1996
judgment. A Civ.R. 60(B) motion for relief from judgment cannot be used as a
substitute for a timely appeal or as a means to extend the time for perfecting an
appeal from the original judgment. State ex rel. Durkin v. Ungaro (1988), 

, 

; State ex rel. McCoy v. Coyle (1997), 

, 

. All of Key’s claims could have been raised in a
timely appeal from the December 1996 judgment of the court of appeals dismissing
his petition.
        {¶ 6} As we held in Durkin, 

, 

:
        “[T]he city is essentially attempting to gain review of the January 16, 1986
judgment by appealing the denial of the [Civ.R. 60(B)] motion to vacate [that] was
rendered by the appellate court in February 1988. Such procedural devices cannot



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                                January Term, 1998




be used in order to obtain review of a judgment where a timely appeal was not filed.
If we were to hold differently, judgments would never be final because a party could
indirectly gain review of a judgment from which no timely appeal was taken by
filing a motion for reconsideration or a [Civ.R. 60(B)] motion to vacate judgment.
For these reasons, we find appellee’s motion to dismiss to be well-taken and,
therefore, the appeal by the city is hereby dismissed.”
       {¶ 7} Accordingly, we dismiss Key’s appeal because it was not properly
perfected.
                                                                 Appeal dismissed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
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