[Cite as State v. Scott, 2023-Ohio-1184.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

PREBLE COUNTY

STATE OF OHIO,

Appellee,

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CHRISTOPHER L. SCOTT,

Appellant.

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CASE NO. CA2022-07-012

O P I N I O N

4/10/2023

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS

Case No. 12 CR 010970

Martin P. Votel, Preble County Prosecuting Attorney, and Kathryn M. West, Assistant 

Prosecuting Attorney, for appellee.

Christopher L. Scott, pro se.

BYRNE, J.

{¶1} Christopher Scott appeals from a decision of the Preble County Court of 

Common Pleas denying his "Motion to [Vacate] and [Set Aside] Sentence Pursuant to Civil 

Rule 60(B)(5)."1 For the reasons that follow, we affirm the trial court's denial of that motion, 

though we do so for different reasons than those stated by the trial court.

1. The bracketed text corrects spelling and spacing errors in the original.
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I. Procedural and Factual Background

{¶2} In 2012, a Preble County grand jury indicted Scott on eight counts, consisting 

of three counts of first-degree felony rape, one count of sexual battery, three counts of gross 

sexual imposition, and one count of importuning. All but the importuning count included 

sexually violent predator specifications. The indictment followed Scott's admission to law 

enforcement that he sexually abused his stepdaughter over the course of multiple years.

{¶3} Scott and the state subsequently entered into a plea agreement in which Scott 

agreed to plead guilty to one count of rape, one count of sexual battery, two counts of gross 

sexual imposition, and one count of importuning. In exchange, the state agreed to dismiss 

the remaining charges as well as all the sexually violent predator specifications. Scott and 

the state also agreed on a sentence of ten years to life in prison for rape, eight years for 

sexual battery, and five years each for the two gross sexual imposition and importuning 

offenses. The parties further agreed that the various sentences imposed by the trial court 

should be served concurrently, for an aggregate sentence of ten years to life. The trial court 

accepted Scott's guilty pleas and imposed the agreed upon sentence. Scott did not directly 

appeal his conviction. 

{¶4} In 2016, Scott filed a motion to correct a void sentence, which the trial court 

denied. Scott appealed that decision out-of-time, and then filed a motion with this court for 

leave to file a delayed appeal of that decision. We denied Scott's motion to file a delayed 

appeal. State v. Scott, 12th Dist. Preble No. CA2016-08-008 (Sep. 21, 2016) (Entry 

Denying Motion for Delayed Appeal).

{¶5} In 2018, Scott moved to withdraw his guilty plea. The trial court denied that 

motion as well. Scott timely appealed. We affirmed the denial of Scott's motion to withdraw 

his guilty plea but remanded for the issuance of a nunc pro tunc sentencing entry to reflect 

that Scott would be subject to a mandatory period of postrelease control should he ever be 
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released from prison. State v. Scott, 12th Dist. Preble No. CA2018-10-015, 2019-Ohio1292, ¶ 41.

{¶6} In 2022—ten years after his guilty plea and sentencing—Scott filed a "Motion 

to [Vacate] and [Set Aside] Sentence Pursuant to Civil Rule 60(B)(5)." In the motion, Scott 

argued that his plea agreement was invalid because he was fraudulently induced to enter 

it. The trial court denied the motion, stating:

It is not necessary for the Court to address the merits of 

Defendant's motion because he is seeking relief in a criminal 

case under the authority granted the Court under the Civil Rules. 

The Civil Rules do not apply to criminal cases and the Court 

lacks the authority to grant the relief the Defendant seeks under 

Civil Rule 60(B). Consequently, Defendant's motion is denied.

Scott appealed, raising one assignment of error.

II. Law and Analysis

{¶7} Scott's assignment of error states:

{¶8} THE TRIAL COURT REFUSED TO ADDRESS THE IMPOSSIBILITY OF 

PERFORMANCE IS AN AFFIRMATIVE DEFENSE TO A BREACH OF CONTRACT CLAIM. 

IMPOSSIBILITY OF PERFORMANCE OCCURS WHERE, AFTER THE CONTRACT IS 

ENTERED INTO, AN UNFORESEEN EVENT ARISES RENDERING IMPOSSIBLE THE 

PERFORMANCE OF ONE OF THE CONTRACTING PARTIES. PERFORMANCE MAY 

BE IMPRACTICABLE BECAUSE IT WILL INVOLVE A RISK OF INJURY TO PERSON OR 

PROPERTY THAT IS DISPROPORTIONATE TO THE ENDS TO BE ATTAINED BY 

PERFORMANCE. IMPRACTICABILITY MEANS MORE THAN IMPRACTICALITY. A 

MERE CHANGE IN THE DEGREE OF DIFFICULTY OR EXPENSE DOES NOT AMOUNT 

TO IMPRACTICABILITY. A PARTY IS EXPECTED TO USE REASONABLE EFFORTS TO 

SURMOUNT OBSTACLES TO PERFORMANCE, AND PERFORMANCE IS ONLY 

IMPRACTICABLE IF IT IS SO IN SPITE OF SUCH EFFORTS.

{¶9} Scott's appellate brief is difficult to follow. He appears to argue that in 2012 

the state misled him into agreeing to the plea deal, which he characterizes as an adhesion 

contract. Specifically, Scott argues that the state told him that he was facing a life sentence 

without the possibility of parole, when in fact this sentence was not an available sentence 

with respect to the crimes with which he was charged. Scott argues that the plea agreement 

was a contract and that performance of this contract was "impossible" because the state 
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misrepresented the terms of the contract. Likewise, he argues that the plea agreement 

"contract" was not enforceable because it was "unconscionable." Scott also contends that 

"there [was] no statutory mandated ten-to-life sentence" for his rape conviction.2 

{¶10} The trial court denied Scott's "Motion to [Vacate] and [Set Aside] Sentence 

Pursuant to Civil Rule 60(B)(5)" without addressing the merits of Scott's arguments. The 

trial court instead simply found that, "The Civil Rules do not apply to criminal cases and the 

Court lacks the authority to grant the relief the Defendant seeks under Civil Rule 60(B)."

{¶11} While it is usually true that the Rules of Civil Procedure do not apply in criminal 

cases, the trial court went too far by suggesting that the Rules of Civil Procedure never

apply in criminal cases. In fact, Crim.R. 57(B) provides that "If no procedure is specifically 

prescribed by rule, the court may proceed in any lawful manner not inconsistent with these 

rules of criminal procedure, and shall look to the rules of civil procedure and to the 

applicable law if no rule of criminal procedure exists." The Ohio Supreme Court has 

recognized 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." State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 10. We have 

cited Schlee and applied its reasoning in our cases. State v. Strunk, 12th Dist. Butler No. 

CA2010-09-085, 2011-Ohio-417, ¶ 8 ("Therefore, the civil rules may be invoked where 

appropriate to fill a void in the rules of criminal procedure in a criminal case").

{¶12} The trial court should have therefore considered—and we must now 

consider—whether there was a void in the criminal procedure rules that merited Scott 

looking to Civ.R. 60(B). We conclude there was no such void. On the contrary, there is a 

criminal rule that addresses the type of arguments raised by Scott in his Civ.R. 60(B) motion. 

2. The state characterizes Scott as arguing that he did not knowingly and voluntarily waive his rights.
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Specifically, Crim.R. 35 establishes a detailed, specific procedure for filing a petition for 

postconviction relief ("PCR petition") as authorized by R.C. 2953.21. Scott's motion 

amounted to a PCR petition. Strunk at ¶ 9. 

{¶13} A motion qualifies as a PCR petition if it (1) is filed after a defendant's direct 

appeal, (2) claims a denial of the defendant's constitutional rights, (3) seeks to render the 

judgment void, and (4) asks the trial court to vacate the judgment. Id. at ¶ 10, citing State 

v. Reynolds, 79 Ohio St.3d 158, 160 (1997). In reviewing the Reynolds elements, Scott's 

Civ.R. 60(B) motion for relief from judgment qualified as a petition for postconviction relief, 

regardless of the title of the motion. Scott filed the motion after his time to file a direct appeal 

passed, claimed a denial of his constitutional due process rights, and sought to render his 

conviction void and to "vacate and set aside" his sentence. 

{¶14} The Ohio Supreme Court in Schlee held that "[c]ourts may recast irregular 

motions into whatever category necessary to identify and establish the criteria by which the 

motion should be judged." Schlee, 2008-Ohio-545 at ¶ 12. Therefore, to analyze Scott's 

motion under the proper criteria, we recast that motion and analyze it as a PCR petition, 

just as we did in Strunk. Id. at ¶ 10-11.

{¶15} To be timely, a PCR petition must be filed within 365 days after the trial 

transcript is filed in the court of appeals (in the case of a direct appeal), or, if no appeal is 

taken, no later than 365 days after the expiration of the time for filing the direct appeal. R.C. 

2953.21(A)(2). The trial court sentenced Scott on September 24, 2012. Scott filed his PCR 

petition approximately ten years later, clearly outside the required time period.

{¶16} In accordance with R.C. 2953.23(A)(1), a court may entertain an untimely 

PCR petition if the petitioner demonstrates one of the following prerequisites: (1) he was 

unavoidably prevented from discovering facts necessary for the claim for relief; or (2) the 

United States Supreme Court recognized a new federal or state right that applies 
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retroactively to persons in the petitioner's situation. If the petitioner satisfies his burden to 

show one of these two conditions, he must then demonstrate that, but for the constitutional 

error at trial, no reasonable fact finder would have found him guilty of the offenses of which 

he was convicted. R.C. 2953.23(A)(1)(b).

{¶17} Scott does not argue the existence of the prerequisites for entertaining an 

untimely PCR petition, and the record before us does not demonstrate that either of those 

prerequisites were met in this case. Accordingly, the trial court lacked jurisdiction to 

consider the merits of his PCR petition. Strunk, 2011-Ohio-417 at ¶ 14, citing State v. King, 

12th Dist. Clermont No. CA2005-07-064, ¶ 7; State v. Apanovitch, 155 Ohio St.3d 358, 

2018-Ohio-4744, ¶ 24. For this reason, we affirm the trial court's decision.

{¶18} Additionally, we note that a PCR petition does not provide a petitioner with a 

second opportunity to litigate a conviction. State v. Boles, 12th Dist. Brown No. CA2016-

07-014, 2017-Ohio-786, ¶ 19. Therefore, a trial court may dismiss a PCR petition based on 

the doctrine of res judicata. Id. "Under the doctrine of res judicata, a final judgment of 

conviction bars a convicted defendant who was represented by counsel from raising and 

litigating in any proceeding, except an appeal from that judgment, any defense or any 

claimed lack of due process that was raised or could have been raised by the defendant at 

the trial, which resulted in that judgment of conviction, or on an appeal from that judgment." 

State v. Szefcyk, 77 Ohio St.3d 93, (1996) syllabus.

{¶19} Scott's argument that his plea agreement was invalid because it was 

fraudulently induced could have been raised on direct appeal. Accordingly, even if Scott's 

motion is not properly recast as a PCR petition, the argument he raises would be barred by 

res judicata.

{¶20} In addition, to the extent Scott argues that his sentence was not authorized 

by law, any alleged sentencing error may not be raised and adjudicated at this time. The 
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Ohio Supreme Court held that sentences imposed in error are only void if the sentencing 

court lacks jurisdiction over the subject matter of the case or personal jurisdiction over the 

accused. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 27. Otherwise, such 

sentences are voidable, and a voidable judgment has the force of a valid legal judgment. 

Id. at ¶ 17. "The failure to timely—at the earliest available opportunity—assert an error in a 

voidable judgment, even if that error is constitutional in nature, amounts to the forfeiture of

any objection." Id. at ¶17. In this case, the trial court had subject matter jurisdiction over 

the case and personal jurisdiction over Scott at the time of sentencing. Thus, any error in 

the sentence would only render it voidable, not void. And because Scott did not challenge 

his sentence on direct appeal, this issue would also be barred by res judicata even if Scott's 

motion were not properly recast as a PCR petition.

{¶21} For these reasons, we conclude that the trial court properly denied Scott's 

"Motion to [Vacate] and [Set Aside] Sentence Pursuant to Civil Rule 60(B)(5)," although for 

the wrong reason. However, "a proper decision by a lower court that is based upon 

improper grounds is not cause for reversal." Strunk, 2011-Ohio-417 at ¶ 15, citing State v. 

Lozier, 101 Ohio St.3d 161, 2004-Ohio-732, ¶ 46. Accordingly, we overrule Scott's sole 

assignment of error and affirm the judgment of the trial court. 

{¶22} Judgment affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.