[Cite as State v. Olman,
2025-Ohio-437.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
CHARLES OLMAN,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 BE 0033
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 21 CR 109
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, for Plaintiff-Appellee
Charles Olman, Defendant-Appellant.
Dated: February 10, 2025
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DICKEY, J.
{¶1} Pro se Appellant, Charles Olman, appeals from the July 16, 2024 judgment
of the Belmont County Court of Common Pleas denying his Civ.R. 60(B) motion for relief
from judgment without a hearing. On appeal, Appellant’s entire argument with respect to
his Civ.R. 60(B) motion addresses only the factors that led to the timeliness of his appeal
of the March 22, 2024 denial of his postconviction petition. Finding no reversible error,
we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} In 2021, Appellant was convicted of two counts of rape following a jury trial.
Appellant was sentenced to two consecutive life sentences without the possibility of
parole and classified as a Tier III Sex Offender. Appellant appealed his conviction and
sentence, Case No. 21 BE 0034. On June 30, 2022, this court affirmed. State v. Olman,
2022-Ohio-2647, ¶ 1, 133 (7th Dist.). Appellant sought a discretionary review before the
Supreme Court of Ohio, which was not accepted. State v. Olman,
2022-Ohio-3752.
{¶3} Appellant subsequently filed an application to reopen his direct appeal
under App.R. 26(B). This court denied his application. State v. Olman, 2022-Ohio-4678,
¶ 1, 36 (7th Dist.). Appellant sought another discretionary review before the Supreme
Court of Ohio, which was not accepted. State v. Olman,
2023-Ohio-1326.
{¶4} On September 13, 2022, Appellant filed his first petition for postconviction
relief under R.C. 2953.21. Following the denial by the Supreme Court of Ohio to grant a
discretionary review and various other continuances, the trial court overruled Appellant’s
petition for postconviction relief on March 22, 2024. On April 25, 2024, the clerk received
for filing Appellant’s “Appeal of Amended Petition to Vacate or Set Aside Judgment of
Conviction or Sentence; AKA Post-Conviction Relief Petition.” Because the filing was
received late, this court sua sponte dismissed that appeal, Case No. 24 BE 0012, on May
7, 2024.
{¶5} On June 10, 2024, Appellant filed a Civ.R. 60(B) motion for relief from
judgment alleging he was prevented from timely appealing the denial of his postconviction
petition due to mail delays. On June 26, 2024, Appellee, the State of Ohio, filed a
memorandum in opposition. On July 16, 2024, the trial court denied Appellant’s Civ.R.
Case No. 24 BE 0033
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60(B) motion without a hearing because he failed to establish the existence of a potential
meritorious defense.
{¶6} On July 31, 2024, Appellant filed an “Intent to Appeal Civil Rule 60(B)” that
initiated this case. On August 28, 2024, Appellant filed an “Appeal of Civil Rule 60(B).”
This court sua sponte dismissed that appeal, Case No. 24 BE 0043, as untimely and
duplicative of the present case.
{¶7} On September 17, 2024, Appellant filed a “Petition for Peremptory Writ of
Mandamus.” The next day, the trial court clarified that its March 22, 2024 decision would
have included denial of the petition for court orders, but if it did not, the court expressly
overruled the petition. On October 1, 2024, Appellant filed an “Intent to Appeal
Peremptory Writ of Mandamus; AKA Intent to Appeal Petition for Court Orders,” Case No.
24 BE 0046.
{¶8} In the instant appeal, Case No. 24 BE 0033, Appellant appears to raise one
assignment of error regarding the denial of his Civ.R. 60(B) motion.
ASSIGNMENT OF ERROR
[THE TRIAL COURT ERRED BY DENYING APPELLANT’S CIV.R. 60(B)
MOTION.]
{¶9} Pro se Appellant does not specifically set forth an assignment of error in his
brief pursuant to App.R. 16(A)(3). Upon review, it appears Appellant asserts the trial court
erred in denying his Civ.R. 60(B) motion. Appellant states he “is learning as his case
progresses and cannot possibly be held to the same standard as an attorney.”
(10/21/2024 Appellant’s Brief, p. 1). However, “[a] pro se appellant is held to the same
obligations and standards set forth in the appellate rules that apply to all litigants.” Bryan
v. Johnston, 2012-Ohio-2703, ¶ 8 (7th Dist.), citing Kilroy v. B.H. Lakeshore Co.,
111 Ohio
App.3d 357, 363 (8th Dist. 1996). Despite Appellant’s lack of compliance with the
Appellate Rules, in the interest of justice, we will consider his appeal.
{¶10} At issue is whether Appellant’s Civ.R. 60(B) motion presented a meritorious
defense entitling him to relief under one of the grounds stated in Civ.R. 60(B)(1) through
(5).
Case No. 24 BE 0033
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In order to prevail on a Civ.R. 60(B) motion, “the movant must
demonstrate that: (1) the party has a meritorious defense or claim to present
if relief is granted; (2) the party is entitled to relief under one of the grounds
stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a
reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or
(3), not more than one year after the judgment, order or proceeding was
entered or taken.” Ohio Receivables, LLC v. Millikin, 7th Dist. Columbiana
No. 17 CO 0038,
2018-Ohio-3734, ¶ 19, quoting GTE Automatic Elec., Inc.
v. ARC Industries, Inc., 47 Ohio St.2d 146,
351 N.E.2d 113 (1976),
paragraph two of the syllabus. Courts are not required to hold a hearing on
a Civ.R. 60(B) motion unless the motion and accompanying materials
contain operative facts to support relief under Civ.R. 60(B). Id. at ¶ 19,
citing Summers v. Lancia Nursing Homes, Inc., 2016-Ohio-7935,
76 N.E.3d
653, ¶ 40 (7th Dist.).
The standard of review used to evaluate the trial court’s decision to
grant or deny a Civ.R. 60(B) motion is abuse of discretion. Ohio Dept. of
Job & Family Servs. v. State Line Plumbing & Heating, Inc., 7th Dist.
Mahoning No. 15 MA 0067, 2016-Ohio-3421, ¶ 12. . . .
Paczewski v. Antero Resources Corp.,
2019-Ohio-2641, ¶ 26-27 (7th Dist.).
{¶11} An abuse of discretion occurs when a court exercises its judgment “in an
unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson
v. Abdullah, 2021-Ohio-3304, ¶ 35.
. . . Civ.R. 60(B) shall not be used as a substitute for appeal. See,
e.g., Key v. Mitchell (1998), 81 Ohio St.3d 89, 90-91,
689 N.E.2d 548 (1998)
(“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.”). “It is a fundamental principle of both
civil and criminal procedure that a Civ.R. 60(B) motion is not a substitute for
Case No. 24 BE 0033
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a direct appeal.” State v. Rucci, 7th Dist. Nos. 13MA65, et al., 2014-Ohio-
1396, ¶ 12.
As Civ.R. 60(B) is not a substitute for an appeal, it cannot be utilized
merely to raise mistakes allegedly committed by the trial court. Id. In other
words, to raise mistakes allegedly committed by the trial court, one must
appeal rather than attempt to use a Civ.R. 60(B) motion (which would
actually just be an attempt at reconsideration with a 60(B) label).
Murray v. Auto Owners Ins., 2024-Ohio-656, ¶ 12 (7th Dist.), quoting State v. Brown,
2014-Ohio-5824, ¶ 49-50 (7th Dist.).
{¶12} In this case, Appellant appears to present the following allegations as to
why his Civ.R. 60(B) motion should have been granted: he received the March 22, 2024
judgment denying his postconviction petition on March 29, 2024; he attempted to mail his
notice of appeal with respect to the March 22, 2024 judgment on April 15, 2024 even
though it was not received by the clerk until April 25, 2024 which he blames on the
Southeastern Correctional Institution’s lack of diligence; and he claims he was not at fault
for the notice of appeal not having been timely received by the clerk. See (10/21/2024
Appellant’s Brief, p. 2-3).
{¶13} The State correctly points out that Appellant’s entire argument regarding his
Civ.R. 60(B) motion addresses only the factors that led to the timeliness of his appeal of
the March 22, 2024 denial of his postconviction petition. Appellant fails to present reasons
as to why he should have been granted relief from the judgment denying his
postconviction petition. The Civ.R. 60(B) motion here was “merely an attempt to produce
a second Judgment Entry from which Appellant could appeal.” (11/4/2024 Appellee’s
Brief, p. 5). However, Civ.R. 60(B) is neither a substitute for an appeal nor a means to
extend the deadline to appeal. See Murray, 2024-Ohio-656, at ¶ 12 (7th Dist.), quoting
Brown,
2014-Ohio-5824, at ¶ 49-50 (7th Dist.).
{¶14} In addition, the State “concedes that Appellant can meet the third required
factor [(GTE third prong)] to bring a Rule 60(B) Motion (that it be filed within a reasonable
time)[.]” (11/4/2024 Appellee’s Brief, p. 7). However, the State asserts Appellant “cannot
Case No. 24 BE 0033
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meet the first two” factors. (Id.) Thus, the two main issues here are whether Appellant
has demonstrated a meritorious defense or claim (GTE first prong) and whether he is
entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5) (GTE
second prong).
On motion and upon such terms as are just, the court may relieve a
party or his legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; (2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule 59(B); (3)
fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which
it is based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application; or (5) any
other reason justifying relief from the judgment.
Civ.R. 60(B).
{¶15} Regarding the GTE first prong, Appellant has not demonstrated “a
meritorious defense or claim” that would justify granting his Civ.R. 60(B) motion.
“Meritorious” is defined as, “worthy of legal victory; having enough legal value to prevail
in a dispute.” Black’s Law Dictionary (12th Ed. 2024). Appellant relies solely on the
timeliness of his appeal. Thus, the relief Appellant sought was nothing more than the trial
court re-entering the March 22, 2024 judgment so that he could timely appeal it, contrary
to the dictates and application of Civ.R. 60(B). Based on the facts presented, Appellant
has not demonstrated a meritorious defense or claim that he would actually present to
the trial court, if permitted.
{¶16} Regarding the GTE second prong, Appellant is not entitled to relief under
any of the grounds stated in Civ.R. 60(B)(1) through (5). It appears Civ.R. 60(B)(2)-(4)
are inapplicable here and what Appellant does provide would not justify relief under Civ.R.
60(B)(1) or (5).
Case No. 24 BE 0033
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{¶17} First, Appellant is not entitled to relief under Civ.R. 60(B)(1), “mistake,
inadvertence, surprise or excusable neglect[.]” Appellant claims that of the 30 days in
which he had to appeal, 17 days were used by slow mail delivery. What was actually
required within 30 days, however, was a simple notice of appeal, i.e., a one-page
document that requires very little information. App.R. 3(D) even links to Form 1 in the
Appendix of Forms which is a suggested form of a notice of appeal that Appellant could
have used. There is no reason in the record that Appellant could not have timely
complied.
{¶18} The actual document Appellant did file on April 25, 2024 is not dated. The
document contains an incorrect certificate of service as it states the document was mailed
to the prosecutor’s office on August 8, 2023. While Appellant did produce a receipt
showing he purchased postage for a mailing to the clerk on April 15, 2024, that purchase
was 24 days into his 30 days in which to file a notice of appeal. This is not the type of
evidence that would warrant holding a hearing on the timeliness of the appeal as a hearing
would not have changed anything or aided the trial court. Appellant was aware of the
deadline. Regardless of what happened to Appellant’s mailing between April 15, 2024
and April 25, 2024, Appellant simply failed to act in a timely manner. A hearing would not
have helped to determine whether the March 22, 2024 judgment should be re-entered.
{¶19} Upon a review of the record, the trial court did not abuse its discretion as
Appellant’s motion does not contain operative facts to support relief under Civ.R. 60(B)(1).
See Paczewski, 2019-Ohio-2641, at ¶ 26 (7th Dist.).
{¶20} Second, Appellant is not entitled to relief under the “any other reason
justifying relief” provision in Civ.R. 60(B)(5). This “catch-all” provision only applies when
a more specific provision does not. Tabor v. Tabor, 2003-Ohio-1432, ¶ 30 (7th Dist.).
The grounds for invoking Civ.R. 60(B)(5) should be substantial.
Id. For the same reasons
above, involving the specific provision in Civ.R. 60(B)(1), Appellant is not entitled to relief
under Civ.R. 60(B)(5). See
Paczewski at ¶ 26.
{¶21} Upon consideration, Appellant did not allege operative facts in his Civ.R.
60(B) motion to warrant an evidentiary hearing. Appellant has not provided a meritorious
defense and cannot show that the failure to timely file the appeal was due to “mistake,
Case No. 24 BE 0033
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inadvertence, surprise or excusable neglect” or “any other reason justifying relief” under
Civ.R. 60(B)(1) or (5).
CONCLUSION
{¶22} For the foregoing reasons, Appellant’s sole assignment of error is not welltaken. The July 16, 2024 judgment of the Belmont County Court of Common Pleas
denying Appellant’s Civ.R. 60(B) motion for relief from judgment without a hearing is
affirmed.
Waite, J., concurs.
Robb, P.J., concurs.
Case No. 24 BE 0033
[Cite as State v. Olman, 2025-Ohio-437.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
