COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67025, 67876 & 68085 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION ANDRE JACKSON : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 22, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-221195. JUDGMENT: CASE #67025 & 67876 DISMISSED. CASE #68085 AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Karen L. Johnson Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Michael J. Benza Randall Porter Assistant State Public Defenders Ohio Public Defender Commission 8 East Long Street, 11th Floor Columbus, Ohio 43266-0587 SWEENEY, JAMES D., P.J.: Defendant-appellant Andre Jackson was convicted of aggravated murder, in violation of R.C. 2903.11, with an aggravated robbery specification; and of aggravated robbery in violation of R.C. 2911.01. The appellant was sentenced to die in the electric chair; his convictions were affirmed on direct appeal both to this court and to the Ohio Supreme Court. State v. Jackson (October 5, 1989), Cuyahoga App. No. 55758, unreported; State v. Jackson (1991), 57 Ohio St.3d 29. The appellant's Writ of Certiorari was denied by the United States Supreme Court. On June 23, 1992, the appellant filed a motion for post- conviction relief pursuant to R.C. 2953.21. On July 7, 1992, the State filed a motion for leave to file instanter and motion to dismiss petition to vacate or set aside sentence. On July 14, 1992, the trial court granted the State's motion for leave to file instanter and the motion to dismiss, and ordered the State to file proposed findings of fact and conclusions of law. These findings of fact and conclusions of law were submitted and approved on October 28, 1992. Notice was mailed on October 29, 1992. No appeal was filed. On October 16, 1992, the appellant delivered his second motion for post-conviction relief to the clerk's office, and it was filed on November 6, 1992. On November 4, 1992, the State filed a motion to dismiss the second motion for post-conviction relief. The State filed proposed findings of fact and conclusions of law on November - 3 - 30, 1992; the motion was granted and the findings of fact and conclusions of law were approved on December 7, 1992. Notice was mailed on December 11, 1992. No appeal was filed. On October 12, 1993, the appellant filed a motion for relief from judgment pursuant to Civ.R. 60(A). Although the State filed no response, the court denied the motion on October 18, 1993, and mailed notice on October 20, 1993. On March 16, 1994, well past the thirty days permitted in App.R.4, the appellant filed his appeal from the decision, appellate case number 67025. On May 11, 1994, the appellant filed a second motion for relief from judgment pursuant to Civ.R. 60(A)(B)(5). On June 15, 1994, the State filed a motion to dismiss the motion for relief, which the trial court granted on June 20, 1994. On June 23, 1994, the appellant filed a motion to strike the State's motion as untimely, and in the alternative, a brief in opposition to the motion to dismiss. Notice of the court's decision was mailed on June 28, 1994. On September 8, 1994, the appellant filed his third motion for relief from judgment. On September 23, 1994, the State filed a motion to dismiss the third motion for relief from judgment, which the trial court granted on September 30, 1994. On October 3, 1994, the appellant filed a brief in opposition to the motion to dismiss. Notice of the court's decision was mailed on October 7, 1994. On September 12, 1994, the appellant filed his second appeal; appellate case number 67876. The appellant appealed the June 20, - 4 - 1994 decision of the trial court which granted the State's motion to dismiss the second motion for relief from judgment. On October 27, 1994, the appellant filed his third appeal, appellate case number 68085. This appeal is from the order of September 30, 1994, which dismissed the third motion for relief from judgment. In essence, the appellant has filed two motions for post- conviction relief, neither one of which was timely appealed. Although the appellant filed three motions for relief from judgment, only the third motion was timely appealed. On November 14, 1994, this court consolidated the appellant's appeals. The appellant has set forth ten assignments of error. The first assignment of error: I THE TRIAL COURT ERRED IN DENYING MR. JACKSON'S RULE 60 MOTION. The appellant asserts that the trial court erred in denying both of the motions for post-conviction relief and the three motions for relief from judgment because the clerk of court failed to serve him with the final orders as required under Atkinson v. Grumman (1988), 37 Ohio St.3d 80. The appellant states that all three of the motions for relief from judgment raise the issue of the lack of notice from the clerk of the court's rulings on the motions for post-conviction relief. The State argues that the mailing of the notice of judgment was entered on the docket as to each motion. - 5 - As both parties point out, the Supreme Court determined in Atkinson, supra, that notice of a final appealable judgment or order must be served upon a party who is not in default; and that the docket must indicate that the required service was made. The court also held that: Once the clerk has served notice of the entry and entered the appropriate notation in the docket, the notice shall be deemed to have been served. The failure of any party to receive such notice shall not affect the validity of the judgment or the running of the time for appeal. As Supreme Court made clear, the alleged failure of any party to receive actual notice does not affect the validity of the judgment or the running of the appeal time. See also State v. Blount (August 26, 1993), Cuyahoga App. Nos. 65095, 65096, unreported. In the case sub judice, the docket entries clearly show that notice was mailed on each final order issued by the trial court. The appellant merely argues that the notice was not received. This issue was specifically decided in Atkinson, supra, and the appellant's argument is not well taken. It is noteworthy that where the clerk has failed to provide notice to a party within the three days permitted by Civ.R. 58(B), the running of the time for appeal is governed by App.R. 4(A). The appellate rule provides that an appeal may be filed within thirty days of the service of the notice of judgment. - 6 - Since the appellant failed to comply with the mandates in App.R. 4 in case numbers 67025 and 67876, this court lacks jurisdiction to review the common pleas court's judgment. McCann v. Lakewood (1994), 95 Ohio App.3d 226, 235. Appellate case numbers 67025 and 67876 are therefore both dismissed. The only notice of appeal which was timely filed was the third, appellate case number 68085. Although the third appeal was timely filed, the trial court did not abuse its discretion in denying the appellant's third motion for relief from judgment. In McCann, supra, this court held: An appellate court will not reverse a trial court's grant or denial of a Civ.R. 60(B) motion absent an abuse of discretion. GTE Automatic Elec. v. ARC Industries (1976), 47 Ohio St.2d 146, 1 O.O.3d 86, 351 N.E.2d 113; Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St.3d 64, 5 OBR 120, 448 N.E.2d 1365; Griffey v. Rajan (1987), 33 Ohio St.3d 75, 514 N.E.2d 1122. A movant must satisfy all three of the following in order to prevail on a Civ.R. 60(B) motion: "(1) the party has a meritorious defense or claim to present if relief is granted; "(2) the party is entitled to relief pursuant to one of the reasons stated in Civ.R. 60(B)(1) through (5); and "(3) the motion must be made within a reasonable time and, with respect to Civ.R. 60(B)(1), (2) and (3), not more than one year after the judgment, order or proceeding was entered or taken." GTE, supra; Colley v. Bazell (1980), 64 Ohio St.2d 243, 18 O.O.3d 442, 416 N.E.2d 605; Caruso-Ciresi, supra; Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 15 OBR 505, 474 N.E.2d 328; Griffey, supra; Volodkevich v. Volodkevich (1988), 35 Ohio St.3d 152, 518 N.E.2d 1208; - 7 - Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St.3d 17, 520 N.E.2d 564; Whitt v. Bennett (1992), 82 Ohio App.3d 792, 613 N.E.2d 667; Katko v. Modic (1993), 85 Ohio App.3d 834, 621 N.E.2d 809. The appellant has failed to demonstrate any meritorious defense in the third motion for relief from judgement. As its basis, the motion merely restates the appellant's belief that the trial court failed to serve the appellant with notice of the final judgments issued by the court on the motions for post-conviction relief. As stated previously, the docket clearly reflects that notice was indeed served upon the appellant. The appellant has failed to demonstrate any abuse of discretion committed by the trial court. The first assignment of error is overruled. The second assignment of error: II THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY LOCAL RULE 11. The appellant argues that the court erred in failing to permit him sufficient time as allowed under Loc.R. 11(C) to respond to the motion to dismiss filed by the State in response to the second motion for relief from judgment. The record shows that the State opposed the appellant's second motion for relief from judgment with a pleading captioned as a motion to dismiss. Nonetheless, courts in general refuse to place form over substance. See Mills v. Mills (September 21, 1990), Montgomery County App. No. 12100, unreported; and footnote 1 of - 8 - State v. Bailey (November 2, 1989), Cuyahoga App. No. 56167, unreported. It is clear that the State's motion to dismiss was, in fact, a brief in opposition to the motion for relief from judgment. The appellant was not prejudiced by the trial court's failure to await a response to the State's brief in opposition. Next, the appellant argues that the court failed to serve him notice that his August 24, 1992 motion to submit proposed findings of fact and conclusions of law had been granted. The court provided the appellant with notice of all final judgments or orders as required under Atkinson, supra, and by Civ.R. 58. The appellant's second assignment of error is overruled. The third, fourth, fifth, sixth, seventh, eighth, and ninth assignments of error: III THE TRIAL COURT ERRED IN DISMISSING MR. JACKSON'S POST-CONVICTION PETITIONS WITHOUT RULING ON MR. JACKSON'S REQUEST FOR DISCOVERY. IV THE COURT ERRED WHEN IT DISMISSED MR. JACKSON'S ORIGINAL AND SECOND POST-CONVICTION PETITIONS BECAUSE THE COMPLETE RECORD OF THE CASE WAS NOT BEFORE THE COURT. V THE TRIAL COURT ERRED BY ADOPTING THE STATE'S FINDINGS OF FACT AND CONCLUSIONS OF LAW WITHOUT FIRST PERMITTING MR. JACKSON THE OPPORTUNITY TO RESPOND TO THE STATE'S PROPOSED FINDINGS. VI - 9 - THE TRIAL COURT ERRED BY ADOPTING VERBATIM THE STATE'S FINDINGS OF FACT AND CONCLUSIONS OF LAW WITHOUT ENGAGING IN INDEPENDENT REVIEW OF THE RECORDS, FILES AND MATERIALS IN MR. JACKSON'S SUCCESSOR POST-CONVICTION PETITION. VII THE TRIAL COURT ERRED WHEN IT GRANTED THE STATE'S MOTION TO DISMISS BECAUSE ALL OF MR. JACKSON'S CLAIMS IN BOTH POST-CONVICTION PETITIONS SET FORTH A CONSTITUTIONAL VIOLATION UPON WHICH RELIEF SHOULD HAVE BEEN GRANTED. VIII THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO DISMISS BECAUSE THE AFFIRMATIVE DEFENSE OF RES JUDICATA WAS IMPROPERLY RAISED AND THE TRIAL COURT'S FINDINGS AS TO RES JUDICATA WERE NOT SUPPORTED BY THE RECORD BEFORE THE TRIAL COURT. IX THE TRIAL COURT ERRED WHEN IT DISMISSED MR. JACKSON'S POST-CONVICTION PETITIONS WITHOUT HEARINGS BECAUSE THE CLAIMS WERE SUPPORTED BY EVIDENCE DEHORS THE RECORD AND OTHER CLAMS (SIC) RAISED INEFFECTIVENESS WHICH COULD NOT HAVE BEEN LITIGATED ON DIRECT APPEAL. As the state correctly points out, each of these assignments of error attempt to raise issues which should have been raised upon a direct appeal from the motions for post-conviction relief. The requirements of App.R. 4 are jurisdictional, and this court is without jurisdiction to review the trial court decision. McCann, supra; Moldovan v. Cuyahoga County Welfare Dept. (1986), 25 Ohio St.3d 293. The appellant's third, fourth, fifth, sixth, seventh, eighth, and ninth assignments of error are overruled. - 10 - The appellant's tenth assignment of error: X THE COURT HAS DENIED APPELLANT ANDRE JACKSON THE OPPORTUNITY TO FILE AN ADEQUATE BRIEF, THEREFORE DEPRIVING HIM OF DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT. The appellant argues that the limit on number of pages imposed by this court on an appellate brief is a denial of due process. Assuming, arguendo, that this court has jurisdiction to rule on this assignment of error, it is worthy of note that the Supreme Court has held that succinctness of argument is a beneficial trait in the art of appellate advocacy. State v. Bonnell (1991), 61 Ohio St.3d 179, 186. In the case sub judice, the appellant was not prejudiced by the page limitation set by this court. The limitation was reasonable, and it afforded the appellant ample opportunity to concisely present all of his arguments. The tenth assignment of error is overruled. Case numbers 67025 and 67876 are dismissed. Judgment affirmed as to case number 68085. - 11 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and DONALD C. NUGENT, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .