COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70254 STATE OF OHIO : ACCELERATED : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION FRANK G. SPISAK, JR. : : PER CURIAM Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 21, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. CR-181,411 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: DAVID H. BODIKER Ohio Public Defender RICHARD J. VICKERS, Assistant KATHLEEN A. McGARRY, Assistant Ohio Public Defender Commission 8 East Long Street, 11th Floor Columbus, Ohio 43266-3670 PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas and the briefs submitted by counsel. Appellant-defendant-petitioner Frank G. Spisak (hereinafter "appellant") appeals the denial of his motion for relief from judgment that sought to vacate the trial court's ruling dismiss- ing, without a hearing, his petition for post-conviction relief. The facts relevant to this appeal are as follows: Appellant was convicted on each of four counts of aggravated murder with death penalty specifications, as well as one charge of aggravated robbery. After the mitigation phase of the trial, the jury recommended that a sentence of death be imposed as to each charge of aggravated murder. On appeal, this court vacated one of the convictions for aggravated murder but otherwise affirmed the judgment of the trial court, as modified. Following several motions for remand, the Supreme Court of Ohio affirmed appellant's conviction and death sentence. State v. Spisak (1988), 36 Ohio St.3d 80. On March 6, 1989, the United States Supreme Court denied appellant's writ of certiorari. Spisak v. Ohio (1989), 489 U.S. 1071, 109 S.Ct. 1354, 103 L.Ed.2d 822. Appellant filed a petition for post-conviction relief pursu- ant to R.C. 2953.21 on November 1, 1989, seeking to vacate or set - 3 - aside the judgment and death sentence. He amended the petition four times, with the last amendment filed on December 8, 1989. The petition, as amended, set forth sixty-three causes of action. On January 12, 1990, plaintiff-appellee-respondent State of Ohio (hereinafter "state") filed a motion to dismiss appellant's petition on the basis that the most of the issues raised were previously fully litigated and therefore barred from further review pursuant to the doctrine of res judicata. The remaining issues, the state argued, did not warrant a finding that the judgment of the trial court was void or voidable. In its findings of fact and conclusions of law journalized on June 11, 1992, the trial court granted this motion and dismissed appellant's petition. The state subsequently moved to set an execution date on January 25, 1994. In response to this motion, appellant, on February 1, 1994, filed a motion for relief from order pursuant to Civ.R. 60(A) wherein he argued that he was unaware that the state had filed a motion to dismiss his petition because he was never served with a copy of the state's motion to dismiss. He likewise was unaware that an order had issued as he was also not served with the court's order granting the state's motion to dismiss. On February 3, 1994, appellant moved for relief from judgment pursuant to Civ.R. 60(B)(5), seeking to set aside the judgment dismissing his postconviction petition. Appellant's motion was premised on his lack of opportunity to respond to the state's motion to dismiss because of inadequate service. Specifically, - 4 - appellant argued that he was precluded from bringing to the court's attention the "legal inaccuracies" contained in the state's motion and presumptively considered by the court in ren-dering its decision. Appellant's motion for relief from order was granted on April 5, 1994, and the court ordered that the findings of fact and con- clusions of law, previously filed on June 11, 1992, be served upon the parties. Even though his motion for relief from judgment was not yet ruled on by the trial court, appellant filed his notice of appeal on May 4, 1994 in order to preserve his right to appellate review. Appellant assigned as errors the trial court's failure to rule on and grant his motion for relief from judgment as well as the denial of his petition and failure to comply with R.C. 2953.21. In an opinion journalized on May 1, 1995, this court deter- mined that the review of appellant's motion for relief from judgment was not a final appealable order as the trial court had not yet ruled on the motion. This court otherwise upheld the dismissal of appellant's postconviction petition. Subsequent to this decision and without affording a hearing on the motion, the trial court denied appellant's motion for relief from judgment on January 24, 1996. Appellant timely appeals this ruling and raises the following sole assignment of error for our review: - 5 - THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S OHIO R.CIV.P. 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT. Appellant contends that, never having received a copy of the state's motion to dismiss, he was precluded from responding to the state's motion prior to the court's issuance of the order dismiss- ing same and is, therefore, entitled to have that judgment vacated. The state contends that its motion to dismiss was accompanied by a completed certificate of service and, as such, there is a presumption of proper service which appellant has failed to sufficiently rebut. The state further maintains that R.C. 2953.21 does not specifically provide for a responsive pleading and, as such, appellant cannot show prejudice. A ruling on a motion for relief from judgment pursuant to Civ.R. 60(B) is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of dis- cretion. Griffey v. Rajan (1987), 33 Ohio St.3d 75, 77. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. To prevail on a motion brought under Civ.R. 60(B), 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 - 6 - 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. GTE Automatic Electric, Inc. v. ARC Industries (1976), 47 Ohio St.2d 146. The record before us reveals that appellant's motion was timely, having been filed within one week of discovering that service was incomplete. Furthermore, a motion for relief from judgment based on a failure of service has been held to be suffi- cient grounds under Civ.R. 60(B)(5). Rafalski v. Oates (1984), 17 Ohio App.3d 65, 66. See, also, Rogers v. United Presidential Life Ins. (1987), 36 Ohio App.3d 126, 128. Having determined that appellant's motion was timely and that sufficient grounds were alleged, we turn our attention to whether appellant presented a meritorious defense, keeping in mind that appellant's burden is only to allege such a defense, not to prove that he would prevail on that defense. See Moore v. Emmanuel Family Training Ctr. (1985), 18 Ohio St.3d 64, 67; Colley v. Bazell (1980), 64 Ohio St.2d 243, 247. We agree with the state that there is a presumption of proper service when the record reflects that the rules pertaining to ser- vice have been followed. Rafalski v. Oates, supra at 66; Grant v. Ivy (1980), 69 Ohio App.2d 40. However, evidence by way of affi- davit or sworn testimony indicating that a copy of a motion was never received is sufficient to rebut this presumption. Potter v. Troy (1992), 78 Ohio App.3d 372, 377. - 7 - The record before us reveals that the state's motion to dis- miss was served upon appellant's attorney in accordance with Civ.R. 5. In an affidavit attached to the state's brief in opposition, the assistant prosecuting attorney averred that service of the motion was made by mail upon the Ohio Public Defender Commission and that the motion was not returned to him for failure of delivery. Ordinarily, this would be sufficient to give rise to the presumption of proper service. However, attached to appellant's motion for relief from judgment were the affidavits of Attorneys Kathleen A. McGarry, Richard J. Vickers and David C. Stebbins. The affidavit of Mr. Stebbins averred that his name and the address of the Ohio Public Defender Commission appeared on all pleadings, including appel- lant's petition for postconviction relief. He further averred that he had not been served with the state's motion to dismiss nor was he served with the court's order granting the state's motion. It is our conclusion that appellant's evidentiary documents adequately rebut the presumption of proper service. Accordingly, service of the state's motion to dismiss was not effectuated upon appellant. Notwithstanding the lack of proper service upon appellant, the trial court opined that R.C. 2953.21 did not specifically provide for a responsive pleading to the state's motion to dismiss. As such, the trial court held that dismissal without an evidentiary hearing was warranted because the appellant failed to supply a legally sufficient petition. - 8 - R.C. 2953.21(D) provides, in pertinent part: Within ten days after the docketing of the petition, or within such further time as the court may fix for good cause shown, the prosecuting attorney shall respond by answer or motion. Within twenty days from the date the issues are made up, either party may move for summary judgment. *** In this case, the prosecuting attorney responded by moving to 1 dismiss appellant's postconviction petition. This statutory pro- vision not only does not specifically provide for a responsive pleading, it does not even require the prosecuting attorney to respond to the petition. See State v. Sklenar (1991) 71 Ohio App.3d 444, 446; State v. Roberts (1991), 66 Ohio App.3d 654, 656. Nonetheless, as a civil proceeding, an action for postconviction relief is governed by the Ohio Rules of Civil Procedure. State v. Nichols (1984), 11 Ohio St.3d 40, 42; State v. Milanovich (1975), 42 Ohio St.2d 46, 49, 51-52. Civ.R. 56(E) provides, in pertinent part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. 1 The statute authorizes the trial court to "dismiss" the petition; however, for non-jurisdictional issues, when any party introduces evidence outside of the record, the court treats the issue as one for summary judgment. See State v. Miller (Nov. 10, 1994), Cuyahoga App. No. 67388, unreported, at 1, citing Milanovich, infra. - 9 - After a motion has been filed and served on a party, Loc.R. 11(I) of the Cuyahoga County Court of Common Pleas, General Divi- sion, provides, in pertinent part: The adverse party may file a brief in opposi- tion with accompanying materials, within thirty (30) days after service of the motion. Both the Ohio Rules of Civil Procedure and local rules of court make provision for response once proper service is obtained. Indeed, the court in State v. Pless (1993), 91 Ohio App.3d 197, held that granting the state's motion for summary judgment in an action for postconviction relief, without giving the petitioner an opportunity to respond, denied the petitioner's right to due process. Notwithstanding that postconviction relief is governed by the rules of civil procedure, it is also a statutory remedy governed by R.C. 2953.21. State v. Darden (1989), 64 Ohio App.3d 691, 693. Appellant must present the court with a legally sufficient plead- ing establishing substantive grounds for relief prior to the court granting a hearing on the petition. R.C. 2953.21(C) and (E). Consequently, the issue in this case becomes whether appellant's inability to respond to the state's motion to dismiss due to lack of service was prejudicial and, therefore, constitutes a meritori- ous defense warranting relief from judgment. This court, in State v. Miller (Nov. 10, 1994), Cuyahoga App. No. 67388, unreported, held the dismissal of a postconviction petition without giving the petitioner an opportunity to respond to the state's motion to dismiss was not prejudicial to the peti- - 10 - tioner. In that case, however, the court had before it the peti- tioner's response to the state's motion, albeit filed after the entry of the trial court's decision and consequently not consid- ered by it. Finding that the arguments raised in the petitioner's response brief would have had no bearing on the court's decision, this court found petitioner's inability to respond nonprejudicial and upheld the decision of the trial court dismissing petitioner's petition. Likewise, this court in State v. Hamblin (Dec. 15, 1994), Cuyahoga App. No. 66556, unreported, upheld the dismissal of a postconviction petition when the state filed its motion to dismiss four years after petitioner filed his postconviction petition. This court stated that, by dismissing the petition within a few days after the state's motion was filed and without giving petitioner an opportunity to respond, appellant's response to the state's motion would have "done little to supplement his position on the issues raised in his petition" considering the length of time the trial court had to consider the petition. Id. at 3. We find both decisions of this court to be instructive in reviewing the instant case. While the record before us does not have for this court's consideration a post-decision opposition brief filed by appellant, as was done in Miller, supra, we do have the opinion of this court affirming the dismissal of appellant's postconviction petition. As can be surmised from this opinion as well as from the briefs submitted, appellant argued that the trial - 11 - court failed to comply with the dictates of R.C. 2953.21 in deny- ing his postconviction petition. Specifically, appellant main- tained that the court failed to take into account the entire record when considering his petition. This is essentially the same argument appellant presents as an example of the "legal inaccuracies" that he would have argued in opposition to the state's motion to dismiss given the opportunity to do so. In essence, appellant urges this court in the instant appeal to vacate the judgment of the trial court because he was effectively denied the opportunity to raise an issue previously argued and decided by this court. While we find persuasive appellant's argument that he should have been given the opportuni- ty to respond to the state's motion to dismiss prior to the court's grant of same, appellant has not demonstrated that such a response would have had any bearing on the court's decision. This is especially true where, as here, appellant attempts to raise issues previously argued and decided by this court. Accordingly, appel- lant has failed to allege facts sufficient to constitute a meritorious defense. Having determined that appellant's motion for relief from judgment failed to allege operative facts which would warrant relief under Civ.R. 60(B), the trial court did not abuse its discretion when it denied his motion for relief from judgment. Accordingly, appellant's sole assignment of error is without merit and is overruled. - 12 - The judgment of the trial court is hereby affirmed. - 13 - 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 Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, PRESIDING JUDGE DIANE KARPINSKI, JUDGE TIMOTHY E. McMONAGLE, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .