[Cite as State v. Boyle, 2022-Ohio-2165.]

 

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT 

GREENE COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

DAVID BOYLE

Defendant-Appellant

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Appellate Case No. 2022-CA-7

Trial Court Case No. 2013-CR-42

(Criminal Appeal from

Common Pleas Court)

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O P I N I O N

Rendered on the 24th day of June, 2022.

. . . . . . . . . . . 

MEGAN A. HAMMOND, Atty. Reg. No. 0097714, Assistant Prosecuting Attorney, Greene 

County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio 

45385 45439

Attorney for Plaintiff-Appellee

 

DAVID BOYLE, #A687-887, P.O. Box 5500, Chillicothe, Ohio 45601

Defendant-Appellant, Pro Se

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DONOVAN, J.
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{¶ 1} Defendant-appellant David Boyle appeals from a judgment of the Greene 

County Court of Common Pleas, which overruled his “Motion for Fraud Upon the Court 

Pursuant to R.C. 2921.32(A).” Boyle filed a timely notice of appeal on January 18, 2022.

Facts and Procedural History

{¶ 2} In 2013, Boyle was indicted on 16 counts of rape involving his daughter. 

Following negotiations, Boyle entered a plea of guilty to six counts of rape in exchange 

for the dismissal of the remaining counts. No agreement was reached as to sentencing. 

The trial court sentenced Boyle to an aggregate prison term of 40 years and designated 

him a Tier III sex offender. The conviction was affirmed on appeal. State v. Boyle, 2d 

Dist. Greene No. 2013-CA-43, 2014-Ohio-1271.

{¶ 3} On June 16, 2014, Boyle filed a pro se application to reopen his appeal 

pursuant to App.R. 26(B). We denied his application to reopen on September 29, 2014. 

Boyle filed three additional applications to reopen in 2016, 2020, and 2021, which were 

all denied by this Court.

{¶ 4} On June 24, 2018, Boyle filed a “Motion to Dismiss Defective Indictment,” in 

which he argued that the indictment violated his constitutional right to due process 

because it contained numerous undifferentiated counts of rape. Boyle claimed these 

“carbon-copy” counts failed to describe sufficiently the charges, thereby preventing him 

from properly preparing his defense. The State filed a memorandum in opposition. The 

trial court overruled the motion, finding that Boyle's guilty plea waived any error 

associated with the indictment and that his claims were barred by the doctrine of res 
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judicata. Boyle appealed, and we affirmed the judgment of the trial court. See State v. 

Boyle, 2d Dist. Greene No. 2018-CA-12, 2018-Ohio-3284.

{¶ 5} On September 19, 2018, Boyle filed a “Petition for an Evidentiary Hearing,” 

in which he alleged Miranda violations, speedy trial violations, insufficient evidence, and 

ineffective assistance of counsel. The trial court construed the motion as a petition for 

post-conviction relief and denied it as untimely on October 23, 2018.

{¶ 6} On November 2, 2021, Boyle filed a “Motion for Fraud Upon the Court 

Pursuant to R.C. 2921.32(A).” The State filed a memorandum in opposition on 

December 1, 2021. The trial court again construed the motion as a petition for postconviction relief and denied it as untimely on January 6, 2022.

{¶ 7} It is from this judgment that Boyle now appeals.

{¶ 8} Because they are interrelated, all of Boyle’s assignments of error will be 

discussed together:

FRAUD BY WAY THAT APPELLATE COUNSEL FAILED HIS DUTY 

BY STATING HE DID AN INDEPENDENT REVIEW OF THE 

APPELLANT’S ENTIRE RECORDS.

FRAUD UPON THE COURT FOR PROSECUTION CONTINUALLY 

DENIED APPELLANT’S MOTION APPLYING RES JUDICATA.

FRAUD UPON THE COURT FOR FAILING TO MERGE COUNTS.

FRAUD UPON THE COURT FOR FAILING TO COMPLY TO [SIC] 

CRIM.R. 11.

FRAUD UPON THE COURT WHEN TRIAL COUNSEL 
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PRESENTED A WAIVER OF PRELIMINARY HEARING SIGNED BY 

APPELLANT.

FRAUD UPON THE COURT FOR COUNSEL AND COURTS 

ALLOWING A SUPERINTENDENCE RULE TO BE USED BY DEFENSE 

COUNSEL.

FRAUD UPON THE COURT FOR FAILING TO COMPLY WITH 

CRIM.R. 7, AND FALSE INFORMATION WITHIN THE INDICTMENT.

FRAUD UPON THE COURT FOR UPHOLDING A CONVICTION 

AFTER A SPEEDY TRIAL VIOLATION.

{¶ 9} As previously stated, the trial court overruled Boyle’s “Motion for Fraud Upon 

the Court Pursuant to R.C. 2921.32(A)” as an untimely petition for post-conviction relief. 

We have recognized that the “nature of a motion is not necessarily governed by its title.” 

State v. Housley, 2d Dist. Miami No. 2019-CA-12, 2020-Ohio-1143, ¶ 15. “When a 

motion is filed subsequent to a direct appeal (or the expiration of time for filing a direct 

appeal), claims the denial of constitutional rights, seeks to render the judgment of 

conviction void, and asks for vacation of the judgment and sentence, the motion is 

properly construed as a petition for post-conviction relief.” Id., citing, e.g., State v. 

Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997); State v. Cline, 2d Dist. 

Champaign No. 2013-CA-51, 2014-Ohio-4503, ¶ 7.

{¶ 10} Here, Boyle's motion was filed after his direct appeal and claimed that 

constitutional errors rendered his conviction void. The motion contained all of the 

elements of a petition for post-conviction relief, and the trial court properly treated it as 
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such.

Standard for Petitions for Post-Conviction Relief

{¶ 11} A petition for post-conviction relief “is a means by which the petitioner may 

present constitutional issues to the court that would otherwise be impossible to review 

because the evidence supporting those issues is not contained in the record of the 

petitioner's criminal conviction.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251, ¶ 14 (2d 

Dist.), quoting State v. Monroe, 2015-Ohio-844, 29 N.E.3d 391, ¶ 37 (10th Dist.). A postconviction proceeding is a “civil collateral attack on a criminal judgment,” not an appeal 

from the criminal conviction. State v. Wells, 2d Dist. Montgomery No. 22389, 2008-Ohio4932, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999).

{¶ 12} When a defendant has pursued a direct appeal of his or her conviction, as 

Boyle has, a petition for post-conviction relief must be filed no later than 365 days “after 

the date on which the trial transcript is filed in the court of appeals in the direct appeal of 

the judgment of conviction or adjudication.” R.C. 2953.21(A)(2). Trial courts lack 

jurisdiction to consider an untimely or successive petition for post-conviction relief, unless 

the untimeliness is excused under R.C. 2953.23(A). State v. Current, 2d Dist. Champaign 

No. 2012-CA-33, 2013-Ohio-1921, ¶ 16.

{¶ 13} The untimely filing of a petition for post-conviction relief may be excused 

with a showing that either (1) the defendant was unavoidably prevented from discovering 

the facts upon which he or she relies to present the claim, or (2) the United States 

Supreme Court had recognized a new federal or state right that applies retroactively to 

his or her situation and the petition asserts a claim based on that right. R.C. 
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2953.23(A)(1)(a). The petitioner also must show by clear and convincing evidence that, 

if not for the constitutional error from which he or she suffered, no reasonable factfinder 

would have found the petitioner guilty. R.C. 2953.23(A)(1)(b).

{¶ 14} We review a trial court's denial of a petition for post-conviction relief without 

a hearing for an abuse of discretion. State v. Clemmons, 2d Dist. Montgomery No. 28085, 

2019-Ohio-2997, ¶ 18; State v. Harden, 2d Dist. Montgomery 23617, 2010-Ohio-3343, 

¶ 10. An abuse of discretion occurs when the trial court's decision is unreasonable, 

arbitrary, or unconscionable. State v. Turner, 2d Dist. Montgomery No. 27350, 2017-Ohio4101, ¶ 5, citing State v. Jenkins, 2d Dist. Montgomery No. 27173, 2017-Ohio-1073, ¶ 10.

{¶ 15} Boyle has failed to allege or assert any facts that would satisfy the twoprong test set forth in R.C. 2953.23(A)(1). Specifically, Boyle has failed to allege any 

facts which would establish that he was unavoidably prevented from discovering the facts 

upon which he relies to present his claims, and he does not assert that the United States 

Supreme Court has recognized a new federal or state right that applies retroactively to 

his situation. 

{¶ 16} In light of the foregoing, the trial court did not abuse its discretion in finding 

that Boyle’s Motion for Fraud Upon the Court was both successive and untimely; it was 

filed over eight years after his original conviction. Furthermore, because the 

untimeliness of Boyle's motion was not excused under R.C. 2953.23(A), the trial court 

lacked jurisdiction to consider it and properly overruled it on that basis. See State v. 

Taylor, 2d Dist. Greene Nos. 2019-CA-77 and 2020-CA-6, 2021-Ohio-1670, ¶ 52; see 

also State ex rel. George v. Burnside, 118 Ohio St.3d 406, 2008-Ohio-2702, 889 N.E.2d 
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533, ¶ 6 (court had no duty to issue findings of fact and conclusions of law on successive 

or untimely petitions for post-conviction relief); State v. Kilbarger, 2d Dist. Montgomery 

No. 26284, 2015-Ohio-2177, ¶ 10 (because defendant’s petition was untimely, the trial 

court did not err when it denied it without holding a hearing).

{¶ 17} Boyle’s assignments of error are overruled, and the judgment of the trial 

court is affirmed. 

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TUCKER, P.J. and EPLEY, J., concur. 

Copies sent to: 

Megan Hammond

David Boyle

Hon. Adolfo A. Tornichio