[Cite as State v. To, 2019-Ohio-1795.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 18AP-751 

v. : (C.P.C. No. 03CR-0580)

Bang To, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on May 9, 2019 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Seth L. 

Gilbert, for appellee. Argued: Seth L. Gilbert. 

On brief: Kura, Wilford & Schregardus Co., L.P.A., and 

Sarah M. Schregardus, for appellant. Argued: Sarah M. 

Schregardus.

 

APPEAL from the Franklin County Court of Common Pleas 

NELSON, J. 

{¶ 1} Prefatory note—this timeline may provide a useful reference in connection 

with the following discussion of defendant-appellant Bang To's appeal from the trial 

court's denial of his Civil Rule 60(B) motion: 

November 3, 2003 – Bang To pleads guilty to two counts of 

trafficking in cocaine as third-degree felonies, one count of 

cocaine trafficking as a fourth-degree felony, and one fourthdegree felony count of cocaine possession. His plea form 

states that he is not a citizen of the United States. 

January 14, 2004 – The trial court adopts the agreed 

sentence recommendation and sentences Mr. To to three 

years and six months in prison, with 18 months of that time 

mandatory and an understanding that the state would not 

object to judicial release after that period. 
No. 18AP-751 2 

August 24, 2005 – The trial court grants judicial release, 

allowing Mr. To to leave prison. 

July 27, 2010 – Mr. To's period of probation ends. 

October 20, 2017 – Through counsel, Mr. To files a Motion 

to Vacate Plea and Conviction on the ground that he had not 

properly been advised of the potential consequences of his 

conviction on his immigration status; he cites Padilla v. 

Kentucky, 559 U.S. 356 (2010), and R.C. 2943.031 (enacted 

1989). 

October 31, 2017 – Mr. To executes the affidavit referenced 

variously in his motion of 11 days earlier as an unidentified 

attachment, as Exhibit B, and as Exhibit C. 

November 6, 2017 – The state files its memorandum 

opposing Mr. To's motion to withdraw his guilty plea. 

Beginning on the first page of its memorandum, the state 

underscores that Mr. To had attached no exhibits to his 

motion. 

February 5, 2018 – Having received no further filings in the 

matter, the trial court denies Mr. To's motion to vacate. 

April 18, 2018 – Mr. To through different counsel files a 

Motion for Relief Under Civ.R. 60(B) seeking to provide the 

purported attachments to his October 20, 2017 motion to 

vacate and have the trial court reconsider that matter. On 

review of the filings, the trial court denies the 60(B) motion 

on August 28, 2018. 

{¶ 2} This case comes to us as an appeal from the trial court's decision denying 

defendant-appellant Bang To's Motion for Relief Under Civil Rule 60(B) that sought to 

have that court revisit on a supplemented record its judgment denying Mr. To's earlier 

motion to vacate a plea and conviction. A brief procedural history and reference to the 

surrounding legal landscape therefore seems in order. 

Facts and Legal Backdrop 

{¶ 3} Back in 2003, Mr. To pleaded guilty to various charges of trafficking in 

cocaine and a related possession count. He served about a year and a half in prison before 

gaining judicial release in 2005. 
No. 18AP-751 3 

{¶ 4} In 2017, now concerned that his drug trafficking record could adversely 

affect his immigration status, he filed a motion to vacate his plea and conviction on the 

ground that he had not been properly cautioned on the effect the conviction could have 

regarding possible deportation, exclusion from admission to the United States, or 

naturalization here. Although he raised a federal constitutional claim under a United 

States Supreme Court case from 2010 that had been held not to be retroactive to 

sentences imposed before that decision issued, compare Padilla v. Kentucky, 559 U.S. 

356 (2010), with Chaidez v. United States, 568 U.S. 342 (2013), he also asserted an 

independent state statutory right under R.C. 2943.031. 

{¶ 5} On its face, that statute might appear to provide bright-line instruction that 

under certain circumstances, a court before accepting a plea from someone who does not 

certify that he is a U.S. citizen must "address the defendant personally" and advise him in 

specific, statutorily formulated terms that conviction may result in deportation, exclusion, 

or denial of naturalization: "the court shall set aside the judgment and permit the 

defendant to withdraw a plea of guilty * * * if * * * the court fails to provide the defendant 

the [required] advisement." R.C. 2943.031(A), (B) & (D). "In the absence of a record that 

the court provided the advisement * * *, the defendant shall be presumed not to have 

received the advisement." R.C. 2943.031(E). 

{¶ 6} The Supreme Court of Ohio has elaborated on the statute and developed a 

multi-factor balancing inquiry to determine whether a trial court has abused its discretion 

in denying a motion to withdraw. "As one of many factors underlying the trial court's 

exercise of discretion in considering the motion to withdraw, timeliness of the motion 

[relative to the date of conviction] will be of different importance in each case, depending 

on the specific facts." State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 42. 

Moreover, "[a]s one of the showings that must be made to prevail on an R.C. 2943.031(D) 

motion, a defendant must demonstrate that he or she was prejudiced by the trial court's 

alleged failure to comply," and while the statutory language is "crystal clear in supplying 

the specific language" of the advisement formulation, a "substantial-compliance 

approach" obtains. Id. at ¶ 45-46. But see id. at ¶ 59 (Moyer, J., dissenting) ("I disagree 

with this holding because it violates the plain language of R.C. 2943.031(D)"). 

{¶ 7} Mr. To, through counsel, relied heavily on that statute in his motion to 

vacate, which referenced an "affidavit in support attached hereto and incorporated here." 
No. 18AP-751 4 

(Oct. 20, 2017 Mot. to Vacate Plea at 1.) His memorandum in support of that motion 

mentioned three attachments: an "Exhibit A, transcript of [plea] proceedings of 

November 3, 2003 attached hereto," id. at 2; an "Exhibit B, Journal Entry, of November 3, 

2003 [the date of the plea] attached hereto," id.; and statements of Mr. To, referenced 

first as an untitled document "attached hereto and incorporated herein," id., then as "Ex 

B, Affidavit of Bang To, attached hereto," id. at 3; and finally as "Exhibit C," id. at 5. No 

such documents actually were attached to the filing. 

{¶ 8} The state opposed Mr. To's motion to withdraw his plea, noting that some 

14 years had elapsed since he was convicted and that his probation had ended seven years 

ago. The state also pointed up that: "To's motion also cites 'Ex. B,' which he describes as 

To's affidavit. However, there are no exhibits or any other documents attached to To's 

motion." (Nov. 6, 2017 Memo. Contra Mot. to Withdraw Guilty Plea at 1-2.) The state 

reiterated that "To has not provided any transcript," and observed that "To fails to show 

that he did not subjectively understand * * * [and] that he would have insisted on going to 

trial had he been advised" pursuant to statute. Id. at 2. 

{¶ 9} Mr. To did not then seek to rectify any failure to have attached documents. 

He filed no reply and made no other filing in support of his motion to vacate. 

{¶ 10} In the fullness of time, some three months after the state had filed its 

opposition to Mr. To's motion to vacate, the trial court denied that motion. (Feb. 5, 2018 

Decision & Entry.) After noting that Padilla was inapplicable as without retroactive effect, 

the judge turned to R.C. 2943.031. Reciting the statutory language, the judge noted that 

"the Court must proceed under the presumption that the [immigration-related] 

advisement was not given." Id. at 3. The judge quoted this court, as governed by Francis, 

observing that "the trial court, in its discretion, may take into account many factors, 

including timeliness and prejudice * * * '[S]ubsumed within timeliness is the prejudice to 

the state in terms of stale evidence and unavailability of witnesses.' " Id. at 3-4, quoting 

State v. Walker, 10th Dist. No. 15AP-1107, 2017-Ohio-511, ¶ 21 (internal citations 

omitted). 

{¶ 11} The trial court found the motion to vacate inexplicably untimely, and 

prejudicial to the state. Id. at 4. "In the more than thirteen years that have passed 

between the finality of the conviction and the filing of this Motion, it is likely that the 

state's evidence has been destroyed, as the underlying charges were drug related, and any 
No. 18AP-751 5 

witnesses would be unavailable. The Court finds that the state would be prejudiced in 

recreating a case to prosecute, given the passage of time which has occurred." Id. at 4-5. 

{¶ 12} Further, noting that "no exhibits have been filed in support of the instant 

Motion," the trial court found that "Defendant failed to provide any evidence that he is 

facing exclusion * * * or denial of naturalization." Id. at 5. And, finding that "the plea 

agreement benefitted the Defendant," and given "the lack of any exhibits or supporting 

evidence," he concluded that "Defendant has not demonstrated prejudice" that is a 

precondition to relief under the statute pursuant to Francis and its progeny; he denied the 

motion with no evidence presented. Id. at 5-6. He also turned away any effort to 

withdraw the pleas pursuant to Criminal Rule 32.1, as burdened by unexplained delay and 

a failure to show manifest injustice. Id. at 8-9. 

{¶ 13} Mr. To did not respond to the trial court's denial of his motion to vacate for 

roughly two and a half months. Then, on April 18, 2018, he filed a Motion for Relief 

under Civil Rule 60(B). That motion recited that Mr. To's earlier motion to withdraw his 

guilty plea "[i]n fact, * * * had no exhibits attached to it." (Apr. 18, 2018 Mot. for Relief 

Under Civ.R. 60(B) at 3.) After quoting Civ.R. 60(B), the motion argued that the failure 

to submit exhibits supporting the motion to withdraw the plea had resulted from 

"inadvertence and professional oversight [sic]" of the previous counsel in failing to 

"submit the supporting exhibits with the motion that he filed." Id. at 4 (emphasis added.) 

And it provided an affidavit from that lawyer saying: "I fully intended to file the exhibits 

referred in the filed [sic] on October 20, 2017, and I assumed that they had been properly 

filed with the motion." (Apr. 18, 2018 Mot., Ex. D; Krajenke Aff. at ¶ 7) (emphasis added.) 

The lawyer's affidavit also identified and submitted the purported missing exhibits: "(A) a 

transcript of the plea and sentencing hearing * * *; (B) the November 3, 2003 journal 

entry [sic][;] and (C) an affidavit of Bang To." (Krajenke Aff. at ¶ 4.) Submitting the 

"absent exhibits," the 60(B) motion urged, "cures the defective record, and requires" 

revisiting Mr. To's motion to withdraw his plea. (Apr. 18, 2018 Mot. at 4.) 

{¶ 14} The trial court disagreed. After concluding that analysis under Civ.R. 60(B) 

was appropriate to these circumstances, the judge noted that to prevail under that rule, "a 

party must: (1) seek relief within a reasonable time; (2) demonstrate [that] he or she has a 

meritorious defense or claim to present if relief is granted; and (3) show [that] he or she is 

entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5)." 
No. 18AP-751 6 

(Aug. 28, 2018 Decision & Entry at 3, citing GTE Automatic Elec., Inc. v. ARC Indus., Inc., 

47 Ohio St.2d 146 (1976), paragraph two of the syllabus.) Mr. To was not able to meet 

"GTE Prong 3," the trial court said, because he had not alleged facts to establish that he 

was entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5). Id. at 

4, 8. The trial court therefore denied the Civ.R. 60(B) motion on the papers before him 

because the operative facts as alleged by Mr. To did not warrant relief on any Civ.R. 60(B) 

ground. Id. at 8-9, citing Cunningham v. Ohio Dept. of Transp., 10th Dist. No. 08AP330, 2008-Ohio-6911, ¶ 35 (internal citations omitted). 

{¶ 15} More specifically, the trial court explained that because "60(B)(2)-(4) are 

inapplicable" to this case, and because "60(B)(5) cannot be used as a substitute for any of 

the other[,] more specific provisions of Civ.R. 60(B)," To had to show that "he is entitled 

to relief under Civ.R. 60(B)(1)." Id. at 4, citing Def.'s Mot. for Relief, Ex. D at ¶ 5-7; 

McBride v. Columbus, 10th Dist. No. 05AP-75, 2005-Ohio-6058, ¶ 6 (further citation 

omitted.) 

{¶ 16} That Mr. To had not done, the trial court said, because "[n]egligence is an 

insufficient justification" for unilateral mistake, id. at 6, quoting Howard v. Howard, 10th 

Dist. No. 14AP-292, 2014-Ohio-5248, ¶ 9, and so failure of "oversight[,] or inadvertence" 

is not grounds to justify unilateral mistake, especially here where the state's 

memorandum opposing withdrawal of the plea had "pointed out, in two separate parts 

* * * that Defendant had failed to attach the exhibits" and where "Defendant has offered 

no justification for the failure to cure the issue between November 6, 2017 [the date of the 

state's filing] and February 5, 2018 [the date the court denied the motion to vacate the 

plea]," with "the neglect of a party's counsel * * * imputed [to] the party for the purposes 

of Civ.R. 60(B)(1)," id. at 6, citing GTE, 47 Ohio St.2d at 153; "inadvertence is not 

demonstrated," where "no action was taken" after the state had flagged a failure to attach 

exhibits, id. at 7 (emphasis added); "surprise is not supported by the facts and 

circumstances of this case," id. (emphasis added); and "even if special circumstances are 

found" (and none was alleged), neglect was not excusable because "the failure to attach 

the exhibits could have been prevented by the party seeking relief" and lack of "[o]versight 

by the attorney at the time of the filing of the Motion to Vacate does not constitute 

excusable neglect," id. at 8, citing Dispatch Printing Co. v. Recovery Ltd. Partnership, 
No. 18AP-751 7 

10th Dist. No. 14AP-640, 2015-Ohio-1368, ¶ 13, and Stuller v. Price, 10th Dist. No. 02AP29, 2003-Ohio-583, ¶ 52. 

{¶ 17} The case thus comes to us for review of the trial court's denial of the Civ.R. 

60(B) motion. Mr. To is correct in emphasizing that: "The issue in this particular 

[appeal] is not the underlying merits of the Motion to Withdraw Guilty Plea, but rather 

whether the trial court unreasonably denied Appellant's Civ. R. 60(B) motion." 

(Appellant's Reply Brief at 6-7.) The propriety of the trial court's ruling on that Civ.R. 

60(B) motion is the only matter before us. 

Analysis 

{¶ 18} Mr. To's sole assignment of error asserts that "[t]he judgment of the trial 

court [denying the 60(B) motion] is contrary to law, and constitutes an abuse of 

discretion." 

Applicability of Civ.R. 60(B) 

{¶ 19} As a preliminary matter, we note that the state urges as an alternative 

ground for affirmance that it is not proper here to consider Civil Rule 60(B) at all. See 

Appellee's Brief at 4-15 ("Civ.R. 60(B) is inapplicable to withdraw a guilty plea or to claim 

ineffective assistance"). For the very limited circumstances of this case, however, 

involving Mr. To's effort to supplement the record and have the trial court revisit his 

motion to vacate the plea and conviction under the unique statutory scheme that R.C. 

2943.031 creates, we conclude that Civ.R. 60(B) analysis is appropriate. 

{¶ 20} The state acknowledges, as it must, that Criminal Rule 57 provides that a 

court "shall look to the rules of civil procedure and to the applicable law if no rule of 

criminal procedure exists" specifically prescribing a procedure to follow. Crim.R. 57(B); 

see also State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 10 ("Today we hold that the 

plain language of Crim.R. 57(B) permits a trial court in a criminal case to look to the Rules 

of Civil Procedure for guidance when no applicable Rule of Criminal Procedure exists"). 

By the same token, of course, where the criminal rules do set forth the relevant procedure, 

recourse to the civil rules is not warranted. Schlee at ¶ 11-12. 

{¶ 21} We are not persuaded by the state's arguments that Crim.R. 32.1 or the rules 

governing petitions for postconviction relief always cover the panoply of procedural issues 

surrounding an attempt to revisit denial of a motion to vacate a plea and sentence as 

predicated on the dictates of R.C. 2943.031(D) that "[u]pon motion of the defendant, the 
No. 18AP-751 8 

court shall set aside the judgment and permit the defendant to withdraw a plea of guilty 

* * * if * * * the court fails to provide the advisement" regarding the potential 

consequences a conviction may have for immigration status. 

{¶ 22} The Supreme Court was explicit in Francis: "In most circumstances, 

motions to withdraw guilty or no contest pleas are subject to the standards of Crim.R. 32.1 

[with its requirement that a defendant demonstrate 'manifest injustice']. However, an 

examination of R.C. 2943.031 in its entirety makes apparent the General Assembly's 

intent to free a noncitizen criminal defendant from the 'manifest injustice' requirement of 

Crim.R. 32.1 and to substitute R.C. 2943.031(D)'s standards in its place * * * [T]he 

General Assembly has created a substantive statutory right for certain criminal 

defendants * * * [that]prevails over the general procedural provisions of Crim.R. 32.1." 

2004-Ohio-6894 at ¶ 26. "Taken as a whole," that is, "R.C. 2943.031's emphasis is on the 

mechanical question of whether the defendant received the warning required" by that 

statute. Id. at ¶ 30. 

{¶ 23} In the face of this statutory and Supreme Court language, the state cannot 

be heard to say that " 'Crim.R. 32.1 contains the specific, proper procedure to withdraw a 

guilty plea' " in the specific context of this statute relating to immigration-status warning. 

Compare Appellee's Brief at 8 (also conceding that its cited cases there "all dealt with 

Crim.R. 32.1" and not with R.C. 2943.031); see, e.g., State v. Muhumed, 10th Dist. No. 

11AP-1001, 2012-Ohio-6155, ¶ 22 (answering "in the negative" question of whether a 

previously denied motion to withdraw a guilty plea pursuant to Crim.R. 32.1 prevents 

party "from subsequently pursuing a motion to withdraw, pursuant to R.C. 2943.031(D), 

on the grounds that res judicata [somehow] applies because the second motion is a 

successive motion"). 

{¶ 24} Thus, for example, while a defendant may not offer a Civ.R. 60(B) motion 

"as a substitute for his failure to appeal the original judgment" within the time permitted 

for direct appeals of convictions, State v. Wooden, 10th Dist. No. 02AP-473, 2002-Ohio7363, ¶ 9, the Supreme Court, in recognizing that R.C. 2943.031 "does not mention 

timeliness," has said that "[t]imeliness of [a motion under that particular statute] is just 

one of many factors the trial court should take into account when exercising its discretion 

in considering whether to grant the motion. * * * This is not a situation that requires a 

bright-line rule." Francis, 2004-Ohio-6894 at ¶ 40, 42. That is to say, again, that " 'R.C. 
No. 18AP-751 9 

2943.031(D) provides a method for withdrawing a guilty plea outside of that provided in 

Crim.R. 32.1.' " Muhumed, 2012-Ohio-6155 at ¶ 21, quoting favorably from Lakewood v. 

Shurney, 8th Dist. No. 80885, 2002-Ohio-4789, ¶ 10. 

{¶ 25} The same point establishes why the state cannot persuasively maintain that 

procedures in this particular statutory context inevitably must be governed by Crim.R. 35 

and R.C. 2953.21 governing petitions for postconviction relief. Schlee, as again invoked by 

the state, explicitly states that "some motions may not be recast by a trial court" as 

motions for postconviction relief. 2008-Ohio-545 at ¶ 13. Here, the precise timing 

requirements of postconviction rules including R.C. 2953.21(A)(2) and 2953.23 do not 

automatically control, compare Francis at ¶ 40-42. Moreover, while Mr. To's motion to 

vacate had made a feint in the direction of Padilla, the primary basis for that motion was 

under Ohio statute, not under either the federal or the state constitution, and it did not 

hinge on alleged constitutional deprivations or on DNA testing. His Civ.R. 60(B) motion, 

then, as filed in this case, does exist "independently" from a hypothetical motion for 

postconviction relief and may not appropriately be recast as such a motion. Compare 

Appellee's Brief at 7, with Schlee, 2008-Ohio-545 at ¶ 12-13 (addressing circumstances 

where "the [particular] Civ.R. 60(B) motion filed by Schlee could have been filed as a 

petition for postconviction relief"). 

{¶ 26} Contrary to the state's view, then, this is not a case where " 'res judicata * * * 

acts to bar raising issues in a successive Crim.R. 32.1 motion to withdraw a plea of guilty 

where those issues could have been raised in the prior Crim.R. 32.1 motion.' " Compare 

Appellee's Brief at 9-10, quoting Muhumed at ¶ 13. 

{¶ 27} R.C. 2943.031 establishes standards very different from those that apply 

under Crim.R. 32.1. Further, Mr. To's 60(B) motion was not a second attempt to withdraw 

a guilty plea, but rather an effort to have the court reevaluate its denial of his sole attempt 

to withdraw the plea under the statute, in light of a proposed record providing "absent" 

exhibits. This is not akin to State ex rel. White v. Suster, 101 Ohio St.3d 212, 2004-Ohio719, which involved various successive attempts to raise the same, already rejected 

statutory claims. 

{¶ 28} If claims of "res judicata" always could foreclose requests to provide relief 

from judgment even on the specific grounds provided in Civ.R. 60(B), that rule could 

never have application. But it does, even in certain criminal cases. See, e.g., Schlee, 
No. 18AP-751 10 

2008-Ohio-545 at ¶ 12 (analyzing whether the particular 60(B) motion there could have 

been filed as a petition for postconviction relief); State v. Brown, 7th Dist. No. 13 MA 172, 

2014-Ohio-5824, ¶ 71-72 ("appeal [there, as here] would have been based upon a different 

argument than that made in the Civ.R. 60(B) motion. The motion for relief raised items 

existing outside of the record and was based upon mistakes of the parties and the expert 

and not a mere argument that the trial court committed a mistake. * * * Civ.R. 60(B) 

exists in order for a party to seek relief from final orders that cannot be raised on appeal"); 

State v. Dovala, 9th Dist No. 13CA010440, 2014-Ohio-2331 (relief under 60(B)(5)). 

{¶ 29} Here, where Mr. To "specifically invoke[ed] Civ.R. 60(B) for relief from 

judgment based upon a failure to attach exhibits to his Motion to Vacate" (and not as a 

claim for ineffective assistance of counsel), the trial court was right in addressing the 

motion under the terms of that civil rule. See Decision & Entry at 2-3; see also id. at 4 

(noting that " 'neglect of a party's attorney will be imputed to the party for the purposes of 

Civ.R. 60(B)((1),' " GTE, 47 Ohio St.2d at 153). 

Civ.R. 60(B) requirements and standard of review 

{¶ 30} "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 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, 47 Ohio St.2d 146, at 

paragraph two of the syllabus and 150 (citations omitted). The movant must satisfy each 

of these three requirements. Id. at 151. And even in addressing a paradigmatic case 

involving whether relief should be granted from a default judgment where the movant has 

a meritorious defense, the principle that cases should be decided on their merits "does not 

obviate the requirement that the movant must demonstrate that he is entitled to relief 

under one of the grounds stated in Civ.[R.] 60(B)(1) through (5)." Id. 

{¶ 31} As enumerated in the rule, those grounds are: "(1) mistake, inadvertence, 

surprise or excusable neglect; (2) newly discovered evidence [under specified conditions]; 

(3) fraud * * * (4) [satisfaction of] judgment * * *; or (5) any other reason justifying relief 

from the judgment." Civ.R. 60(B). Again, the motion must be made "within a reasonable 

time." Id. 
No. 18AP-751 11 

{¶ 32} We review a trial court's grant or denial of a motion under Civ.R. 60(B) for 

abuse of discretion, a standard to which both sides here agree. See Herlihy Moving & 

Storage, Inc. v. Nickison, 10th Dist. No. 09AP-831, 2010-Ohio-6525, ¶ 9, citing Griffey v. 

Rajan, 33 Ohio St.3d 75, 77 (1987); Appellant's Brief at 6; Appellee's Brief at 15; 

Appellant's Reply at 8. "When applying an abuse-of-discretion standard, an appellate 

court may not substitute its judgment for that of the trial court." Herlihy at ¶ 10. " '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.' " Id. at ¶ 9 (citations 

omitted). " 'In order to have an "abuse" [of discretion], the result must be so palpably and 

grossly violative of fact and logic that it evidences not the exercise of will but perversity of 

will, not the exercise of judgment but defiance thereof, not the exercise of reason but 

rather of passion or bias.' " Id. at ¶ 10 (citations omitted). 

{¶ 33} Further, we have reiterated that a "party who files a motion for relief from 

judgment under Civ.R. 60(B) is not automatically entitled to such relief, nor to a hearing 

on the motion * * * [T]he movant bears the burden of demonstrating that he is entitled to 

a hearing on the motion * * * * [by alleging] 'operative facts which would warrant relief 

* * * * Thus, the movant must allege operative facts that, if true, would be sufficient to 

establish each of the elements of the GTE test." Cunningham, 2008-Ohio-6911, at ¶ 35, 

quoting Kay v. Marc Glassman, Inc. 76 Ohio St.3d 18, 19 (1996) (which directs that a 

hearing must be held to take evidence and "verify" operative facts as set forth to warrant 

relief) (various other citations omitted). 

The trial court did not err in denying Mr. To's 60(B) motion. 

{¶ 34} To begin, we observe that neither the trial court nor the parties have much 

addressed the threshold question of whether Mr. To advanced his Civ.R. 60(B) motion 

within "a reasonable time" from the date of that court's denial some two and a half 

months earlier of the motion to vacate the plea. That February 5, 2018 Decision & Entry 

(which found the underlying motion to vacate untimely and prejudicial to the state, and 

that it failed to show prejudice to Mr. To) again pointed out that "no exhibits have been 

filed in support of the instant Motion" and that "Defendant referenced exhibits, but did 

not attach any." (Feb. 5, 2018 Decision & Entry at 5, 6.) 

{¶ 35} Mr. To's Civ.R. 60(B) motion and his appeal argue that the exhibits were to 

have been filed "on October 20, 2017 * * * with the motion" to vacate, see, e.g., Apr. 18, 
No. 18AP-751 12 

2018 Motion, Ex. D; Krajenke Aff. at ¶ 7, but he does not explain either here or in his 

filings below why, if they had been ready to go for half a year before the Civ.R. 60(B) 

motion was filed, the 60(B) motion so lagged the trial court's decision denying the motion 

to vacate. See, e.g., Appellant's Brief at 14 (conclusory assertion that motion was timely as 

"filed less than 90 days after the original decision noting the absence of supporting 

documents," with "no attempt to delay"). And Mr. To had been advised of the evidentiary 

deficiency long before that. See Nov. 6, 2017 Memo. Contra Mot. to Withdraw Guilty Plea 

at 1-2 ("there are no exhibits or any other documents attached to To's motion"). 

{¶ 36} "It is the movant's burden of proof to present factual material that, on its 

face, establishes the timeliness or justifies delays in filing the motion to vacate. * * * In the 

absence of any explanation for the delay in filing the Civ.R. 60(B) motion, the movant has 

failed to meet his burden of establishing timeliness of his motion, and the motion to 

vacate should be denied." EMC Mortg. Corp. v. Pratt, 10th Dist. No. 07AP-214, 2007-

Ohio-4669, ¶ 9 (affirming judgment that even with a potentially valid claim of surprise, 

unexplained delay of four and a half months in filing 60(B) motion was unreasonable and 

constituted grounds for denying the motion). "The requirement of timely filing a motion 

for relief ensures finality in all cases." Id. at ¶ 8 (citation omitted). An "unexplained or 

unjustified delay in making the motion after discovering a ground for relief may put the 

motion beyond the pale of a reasonable time." Herlihy, 2010-Ohio-6525, at ¶ 15 (holding 

that trial court did not abuse its discretion in rejecting 60(B) motion as untimely given 

unexplained four-month delay). 

{¶ 37} Here, especially because Mr. To had been on notice for so long that the 

referenced materials had not accompanied his motion to vacate, we might be persuaded 

to find that the trial court had not abused its discretion had it denied the 60(B) motion for 

its unexplained lack of timeliness. Because that was not the basis for the trial court's 

ruling, however, we proceed to examine the reason for which the judge did deny the 60(B) 

motion: its failure to allege operative facts that, if true, would warrant relief under Civ.R. 

60(B)(1) through (5). (See Aug. 28, 2018 Decision & Entry at 8-9.) We conclude that the 

trial court did not abuse its discretion in making that determination, and that it was 

correct as a matter of law on the lack of sufficient operative facts. 

{¶ 38} At the outset of its analysis, the trial court found that "upon review of 

Defendant's argument, Civ.R. 60(B)(2)-(4) are inapplicable." Id. at 4. It further noted 
No. 18AP-751 13 

that "Civ.R. 60(B)(5) cannot be used as a substitute for any of the other[,] more specific 

provisions of Civ.R. 60(B)," and that therefore "Defendant must prove he is entitled to 

relief under Civ.R. 60(B)(1)." Id. Mr. To does not dispute that assessment. See, e.g., 

Appellant's Brief at 9-14 (relying on claimed "inadvertence" and "excusable neglect"); 

Appellant's Reply at 7 (claiming "trial court abused its discretion when it denied 

Appellant's motion on the basis that he failed to demonstrate mistake, inadvertence 

and/or excusable neglect"). 

{¶ 39} At argument here, Mr. To's counsel emphasized "excusable neglect" as the 

most "on point" of the (B)(1) grounds in this context. See also Appellant's Brief at 11 ("In 

comparison to 'inadvertence,' the stated basis of 'excusable neglect' under the Rule has 

been recognized by the courts as a much more fluid concept"). Mr. To does not and could 

not argue "surprise," and the trial court was correct in observing, Aug. 28, 2018 Decision 

& Entry at 6, that "mistake" typically comprehends a mutual mistake of material fact: 

courts "generally do not grant relief from a judgment when the alleged mistake was a 

unilateral mistake on the part of one party or its counsel," and while a demonstrated 

justification can absolve a unilateral mistake, "negligence is an insufficient justification." 

Howard, 2014-Ohio-5248, at ¶ 9. 

{¶ 40} Mr. To says that the "excusable neglect" and "inadvertence" he posits relate 

to his lawyer's having "failed to submit the supporting exhibits with the motion he filed" 

seeking to vacate the plea and conviction. (Appellant's Brief at 9, citing lawyer Krajenke's 

Affidavit.) But of those three "absent" exhibits, only one has potential salience here. The 

plea form (Exhibit C to Mr. To's 60(B) motion; referenced as Exhibit B in the earlier 

motion to vacate) was already part of the record of the case and bears a filing date stamp 

from 2003; the plea counts and sentences and Mr. To's indication that he was not a 

citizen all were understood by the trial court in ruling on the motion to vacate. See Feb. 5, 

2018 Decision & Entry at 1 (specifying counts and noting that "[t]he plea form indicates 

that Defendant is not a citizen"). And the transcript of plea proceedings (Exhibit A to Mr. 

To's 60(B) motion, and referenced with the same designation in the motion to vacate) was 

to be employed for the proposition that the court at time of plea had not given defendant 

the advisements required by statute—but the trial court, in considering the motion to 

vacate and in keeping with the statute's mandate, had presumed a failure of compliance. 
No. 18AP-751 14 

Id. at 3 ("Here, the Court must proceed under the presumption that the advisement was 

not given. R.C. 2943.031(E)"). 

{¶ 41} What then was not before the trial court and of possible significance to Mr. 

To's arguments to vacate his plea was his own affidavit attesting that he would not have 

taken the plea deal had he received the requisite advisement (Apr. 18, 2018 Mot. for Relief 

Under Civ.R. 60(B); Ex B, To Aff., referenced variously in his motion to vacate as an 

unidentified attachment, then as "Ex B," and finally as "exhibit C"). Mr. To's claim 

throughout the proceedings on his Civ.R. 60(B) motion has been that his counsel 

"through inadvertence and * * * oversight, * * * failed to submit the supporting exhibits 

with the motion" to vacate. (April 18, 2018 Mot. for Relief Under Civ.R. 60(B) at 4) 

(emphasis added); see also Appellant's Brief at 9; Krajenke Aff. at ¶ 7 ("I fully intended to 

file the exhibits referred [to] in the [motion to vacate] filed on October 20, 2017, and I 

assumed that they had been properly filed with the motion") (emphasis added). 

{¶ 42} What Mr. To claims as a result of inadvertence or neglect, then, is not that 

he filed his motion to vacate too soon (in the context of a motion that followed his 

conviction by some 14 years, and with no hard and fast time limit), or that he intended but 

failed to supplement the motion with an additional evidentiary filing some days or weeks 

after the motion was submitted, but rather that he did not file his affidavit with his 

motion. Yet the affidavit on its face rebuts that possibility: It reflects that Mr. To did not 

even execute the document until October 31, 2017, eleven days after his motion had been 

filed. We note that the motion to vacate itself shows uncertainty as to how to reference 

the document, see Oct. 20, 2017 Motion to Vacate Plea at 2 (undesignated "attached" 

document), 3 ("Ex B, Affidavit of Bang To"), 5 ("Exhibit C"), but we are not in a position to 

speculate as to why that was. Had such a document been filed, unsigned and unsworn, on 

the date the motion to vacate was filed, it still would have lacked any intended effect. 

{¶ 43} So the short answer to Mr. To's position that the failure to file his affidavit 

with his motion to vacate was the result of inadvertence or excusable neglect is that it was 

not possible to make such a filing at that time because the executed affidavit as now 

presented apparently did not exist. By definition, failing to do the impossible cannot be 

the result of inadvertence or neglect. And the record in this case is devoid of even the 

slightest suggestion as to why the affidavit was not executed on any day within the week of 

the filing of the motion (and that is not the inadvertence or neglect claimed). Under these 
No. 18AP-751 15 

circumstances, or rather under the lack of any explained circumstances, the trial court 

was under no obligation to inquire further. See, e.g., Brown v. Brown, 10th Dist. No. 

18AP-269, 2018-Ohio-4741, ¶ 12 (" '[i]f the material submitted by the movant in support 

of a motion for relief from judgment under Civil Rule 60(B) contains no operative facts or 

meager and limited facts and conclusions of law, it will not be an abuse of discretion for 

the trial court to overrule the motion and refuse to grant a hearing' ") (citations omitted). 

{¶ 44} But the trial court did in any event proceed to assess the unadorned 

arguments of inadvertence and excusable neglect at face value. It emphasized that even 

after the state had put Mr. To's counsel on notice that no exhibits had been attached to the 

motion to vacate, he "failed to remedy the issue": he did not file a reply or otherwise move 

for leave to file the exhibits. (Aug. 28, 2018 Decision & Entry at 7.) "Instead, no action 

was taken" through November and December of 2017, through all of January of 2018, and 

for some time even after the trial court denied the motion to vacate on February 5, 2018. 

Id. 

{¶ 45} Not filing the "absent" exhibits even after being put on notice that they were 

"missing" is something other than inadvertent "carelessness" or "accidental oversight." 

Compare Stewart v. Heard, 2d Dist. No. 20787, 2005-Ohio-5241, ¶ 18 (citing Black's Law 

Dictionary definition of "inadvertence"). In argument to this court, Mr. To's newer 

counsel speculated that former counsel "obviously didn't read" the state's three-page 

memorandum highlighting that the motion to vacate had "no exhibits or any other 

documents attached," see Nov. 6, 2017 Memo Contra at 1-2. Mr. To did not offer that 

explanation in his Civ.R. 60(B) materials, nor is it or any explanation for such inaction 

elsewhere in the record. See, e.g., Krajenke Aff. at ¶ 7 (ending with, "I assumed [the 

exhibits] had been properly filed with the motion"). More fundamentally, that is not a 

claim of inadvertence, but of obduracy or neglect (and not the excusable kind). See, e.g., 

PHH Mtge. Corp. v. Northup, 4th Dist. No. 11CA6, 2011-Ohio-6814, ¶ 22 ("a party 

involved in litigation cannot simply sit back and claim ignorance of the proceedings"). 

{¶ 46} In Stuller v. Price, for example, we considered an argument that counsel's 

omission from a medical expert's affidavit of required magic language qualifying him to 

testify could permit relief from judgment on grounds of "inadvertent mistake or excusable 

neglect." 10th Dist. No. 02AP-29, 2003-Ohio-583, ¶ 10, 50 (adding that "appellants are 

relying primarily on the grounds of mistake, inadvertence and excusable neglect in the 
No. 18AP-751 16 

preparation of [the] affidavit"). In the course of evaluating timeliness, we underscored 

language from an earlier ruling that " 'Appellants were put on notice by appellee's reply 

to their memorandum contra the summary judgment motion that the affidavit * * * was 

deficient, and they could have requested leave of the court to supplement the affidavit or 

file further affidavits * * *.' " Id. at ¶ 42 (emphasis in original quotation); see also id. at 

¶ 45 ("the trial court expressly considered the failure by appellants * * * to take corrective 

measures after they were put on notice that the affidavit * * * was deficient"). That 

evaluation can transfer to the "inadvertence" argument, too. We proceeded in Stuller to 

affirm denial of the Civ.R. 60(B) motion as further warranted because "appellants have 

failed to establish entitlement to relief * * * under the provisions of * * * Civ.R. 60(B)(1) 

* * *" Id. at ¶ 48. 

{¶ 47} PHH further demonstrates that there is a difference between inadvertence 

and mere neglect. There, the trial court had vacated summary judgment so as to allow a 

defense response within the allotted time. Defendant still did not respond; the court 

entered summary judgment; and the defense later claimed "inadvertence or excusable 

neglect under Civ.R. 60(B)(1)." 2011-Ohio-6814 at ¶ 8. The Fourth District Court of 

Appeals affirmed denial of the motion for relief, ruling that sustained, unjustified failure 

to respond to a filing during ongoing litigation does not fit within the category of 

"inadvertence": the circumstances there did "not demonstrate excusable neglect or 

inadvertence. Instead, appellant's attorney's failure to respond to appellee's summary 

judgment, which is imputed to appellant, demonstrates mere neglect." Id. at ¶ 20. 

{¶ 48} Indeed, Civ.R. 60(B)(1) cases in which a party is aware and in the midst of 

ongoing litigation and yet fails to respond appropriately to filings tend to be analyzed 

under the rubric of "neglect." They do not end well for the moving party unless he or she 

can point to special, unusual mitigating circumstances nowhere suggested here. See, e.g., 

Suon v. Mong, 10th Dist. No. 17AP-879, 2018-Ohio-4187, ¶ 25, quoting Ron Christopher 

Co. v. Borruso, 10th Dist. No. 17AP-369, 2017-Ohio-9033, ¶ 12 ("Where a party has 

knowledge of the lawsuit, * * * the failure to respond to the motion for summary judgment 

amounts to mere neglect in the absence of 'any special, disruptive, or unusual 

circumstances' "); Gamble Hartshorn, LLC v. Lee, 10th Dist. No. 17AP-35, 2018-Ohio980, ¶ 32 ("mere neglect" is not "excusable neglect"; excusable neglect in not responding 

arises only from an action " 'not in consequence of the party's own carelessness, 
No. 18AP-751 17 

inattention, or willful disregard of the process of the court, but in consequence of some 

unexpected or unavoidable hindrance or accident' ") (citations omitted); Dispatch 

Printing Co. v. Recovery Ltd. Partnership, 10th Dist. No. 14AP-640, 2015-Ohio-1368, 

¶ 13-16 (summarizing cases; "most cases that have found excusable neglect also have 

found special circumstances that justify the neglect"; even with such circumstances, other 

cases have declined to find excusable neglect "if the party or the attorney could have 

controlled or guarded against" such circumstances; "the demands of being a busy lawyer 

or of being preoccupied with other litigation generally do not constitute excusable 

neglect"); Covington v. P.I.E. Mut. Ins. Co., 149 Ohio App.3d 406, 2002-Ohio-4732, ¶ 21, 

22 (10th Dist.) (favorably quoting point that " 'courts look at (1) whether the 

circumstances involved were under a party's own control * * * and (2) whether the party 

was paying appropriate attention' "; courts are "reluctant to find excusable neglect in 

circumstances where the called-for action was under the control of the party seeking relief 

and that party failed to make sure that the act was performed") (citation omitted). 

{¶ 49} Mr. To has pointed to no "special circumstances" that prevented him or his 

counsel from filing his "missing" exhibits in the first instance or from submitting them to 

the court once the state's brief put him on notice that those filings had not been made. He 

has advanced no explanation or justification for such inaction, on matters under his own 

control, beyond the bare, unexplained attestation of his counsel that he "inadvertently 

failed" and "did not realize the oversight." See Krajenke Aff. at ¶ 5-6. Even the 

circumstances surrounding the timing of Mr. To's execution of his now proffered affidavit 

remain left to raw speculation. 

{¶ 50} This case, then, is nothing like Kay, where the delinquent counsel showed 

that he had timely prepared an answer and explained in some detail how his secretary had 

misfiled it due to "reorganization of the firm's accounting system." 76 Ohio St.3d at 20. 

Rather, a "mere allegation that the movant's failure to file * * * was due to 'excusable 

neglect and inadvertence,' without any elucidation, cannot be expected to warrant relief." 

Rose Chevrolet v. Adams, 36 Ohio St.3d 17, 21 (1988) (adding: "In Colley v. Bazell 

(1980), 64 Ohio St.2d 243, 249, * * * this court stated that the determination of whether 

excusable neglect occurred 'must of necessity take into consideration all the surrounding 

facts and circumstances.' If the movant fails to apprise the court of those surrounding 

facts and circumstances and the court subsequently overrules the motion, that judgment 
No. 18AP-751 18 

cannot be characterized as an abuse of discretion") (citation omitted). "Because we find 

appellant did not allege [operative] facts to establish a Civ.R. 60(B) ground for relief, the 

trial court did not abuse its discretion in failing to hold an evidentiary hearing." 

Cunningham, 2008-Ohio-6911, at ¶ 37. 

Conclusion 

{¶ 51} The trial court did not err in denying Mr. To's Civ.R. 60(B) motion on the 

basis that he failed to meet "GTE Prong 3" when he did not allege facts sufficient to 

warrant relief under Civ.R. 60(B)(1) through (5). The trial court therefore did not need to 

assess whether Mr. To would have a meritorious claim or defense to present if his claim 

for relief were granted, or whether he had filed his Civ.R. 60(B) motion in a timely 

fashion. See, e.g., Gamble Hartshorn, 2018-Ohio-980, at ¶ 33. 

{¶ 52} Appellant's sole assignment of error is overruled. The judgment of the 

Franklin County Court of Common Pleas is affirmed. 

Judgment affirmed. 

KLATT, P.J., and DORRIAN, J., concur. 

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