State v. Frank G. Spisak

• Decision Date: 13 April 1995
• Docket Number: 95-LW-2094,67229
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE v. FRANK G. SPISAK, JR., DEFENDANT-APPELLANT
• Court: Ohio Court of Appeals

STATE OF OHIO, PLAINTIFF-APPELLEE v. FRANK G. SPISAK, JR., DEFENDANT-APPELLANT

No. 67229.

95-LW-2094 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

April 13, 1995

Civil appeal from Common Pleas Court, No. CR-181411.

For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq., Cuyahoga County Prosecutor, L. Christopher Frey, Esq., Assistant County Prosecutor, Justice Center - 8th Floor, 1200 Ontario Street, Cleveland, OH 44113.

For Defendant-Appellant: Kathleen A. McGarry, Esq., Richard J Vickers, Esq., Assistant State Public Defenders, State of Ohio, 8 East Long Street, 12th Floor, Columbus, OH 43266-0587.

OPINION

DAVID T. MATIA, J.

Frank Spisak, defendant-appellant, appeals from the judgment of the Cuyahoga County Court of Common Pleas which denied his petition for post-conviction relief pursuant to R.C. 2953.21. Defendant-appellant also challenges the trial court's failure to rule on his motion for relief from judgment pursuant to Civ.R. 60(B)(5). Defendant-appellant assigns four errors for this court's review. Defendant-appellant's appeal is not well taken.

I. THE FACTS

This court adopts the statement of facts as set forth by the Ohio Supreme Court in State v. Spisak (1988), 36 Ohio St.3d 80.

On February 1, 1982, the body of the Reverend Horace T Rickerson was discovered by a fellow student on the floor of a restroom on the Cleveland State University campus. Rickerson had been shot seven times by an assailant from a distance of more than eighteen inches. Four spent bullet casings were recovered from the scene.

On the evening of June 4, 1982, John Hardaway was shot seven times while waiting for an RTA train at the West 117th Rapid Station in Cleveland. He observed a man walking up the platform steps and had turned away when the man opened fire on him. Hardaway survived the shooting, and was later able to identify his assailant as the appellant, Frank G. Spisak. Three pellets and seven shell casings were removed from the scene.

At approximately 5:00 p.m. on August 9, 1982, Coletta Dartt an employee of Cleveland State University, left her office to use the restroom. Upon exiting the stall, she encountered the appellant, holding a gun, who ordered her back into the stall. Instead, Dartt shoved appellant out of the way and ran down the hallway. Appellant shot at her, but missed. A pellet was later removed from a wall in the hallway. Dartt identified the appellant as her assailant.

On August 27, 1982, the body of Timothy Sheehan, an employee of Cleveland State University, was discovered in a restroom at the university by a security guard. The guard had been searching for Sheehan after his office reported that he had failed to answer his beeper page. Sheehan had been shot four times, and two pellets were retrieved from the scene.

On the morning of August 30, 1982, the body of a young student, Brian Warford, was discovered in a bus shelter on the campus of Cleveland State University. Warford died from a single gunshot wound to the head, although five spent .22 caliber casings were recovered from the scene.

On September 4, 1982, Cleveland police answered a call that a man was firing shots from a window at 1367 East 53rd Street. The police were directed to appellant's apartment, and appellant, after admitting he had fired one shot, invited the officers inside. A shotgun and a .22 caliber automatic pistol were observed in the room. Appellant made a suspicious move toward the couch but was stopped by one of the officers who discovered a loaded .38 caliber handgun and a two-shot derringer under the couch cushions. Appellant was arrested for possession of unregistered handguns and discharging firearms within city limits, but was later released on bond. The weapons, however, were confiscated. Early the next day an anonymous caller told police that the confiscated weapons had been used in the Cleveland State University shootings. Ballistics tests confirmed the tip. A warrant was obtained, and the police returned to Spisak's apartment, confiscating several items including newspaper clippings of the homicides and Nazi-White Power paraphernalia. Appellant was later arrested, hiding in the basement of a friend's house. During the brief search of appellant's suitcase at the scene, police discovered the beeper pager belonging to Sheehan.

Appellant later admitted to shooting Rickerson for allegedly making a homosexual advance toward him; to killing Sheehan as a possible witness to the Rickerson shooting, to killing Warford while on a "hunting party" looking for a black person to kill; and finally, to shooting at Dartt and to shooting Hardaway. He also told police he had replaced the barrel of a .22 caliber handgun in order to conceal the murder weapon.

Id. at 80, 81.

On March 29, 1983 defendant-appellant was indicted by the Cuyahoga County Grand Jury for four counts of aggravated murder in violation of R.C. 2903.01; three counts of aggravated robbery in violation of R.C. 2911.01; one count of attempted murder in violation of R.C. 2903.02 and one count of receiving stolen property in violation of R.C. 2913.51. The aggravated murder counts contained nineteen death penalty specifications pursuant to R.C. 2929.04(A). In a separate case defendant-appellant and a codefendant were indicted for another attempted aggravated murder charge to which defendant-appellant pled no contest after final disposition of the case presently under review.

On April 8, 1993 defendant-appellant was arraigned whereupon he entered a plea of not guilty by reason of insanity to all of the counts contained in the indictment. Prior to commencement of trial defendant-appellant was referred to the court psychiatric clinic for evaluation under R.C. 2945.39, Sanity at the Time of the Act. Defendant-appellant was also referred at his request to Dr. Sandra McPherson, Dr. Kurt Bertshlinger, Dr. S. M. Samy and Dr. Markey.

On June 22, 1983 jury trial commenced. On July 27, 1983 the jury returned guilty verdicts on all counts and specifications contained in the indictment with the exception of the alleged aggravated robbery of Brian Warford. Following the mitigation phase of the trial the jury recommended that a sentence of death be imposed at to each charge of aggravated murder. Defendant-appellant was also sentenced to terms of seven to twenty-five years on each conviction of attempted murder and aggravated robbery.

This court affirmed defendant-appellant's convictions after finding the two aggravated murder convictions of Timothy Sheehan to be allied offenses of similar import. State v. Spisak (July 19, 1984), Cuyahoga App. Nos. 47458 and 47459, unreported.

Following numerous motions for remand, the Ohio Supreme Court affirmed defendant-appellant's conviction and death sentence. State v. Spisak (1988), 36 Ohio St. 3d 80.

On November 1, 1989 defendant-appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21. The petition was amended four times. In total, defendant-appellant raised 63 causes of action through the petition. On January 12, 1990 plaintiff-appellee filed its motion to dismiss the petition for post-conviction relief. On June 6, 1992, the trial court issued findings of fact and conclusions of law denying defendant-appellant's petition for post-conviction relief and granting plaintiff-appellee's motion to dismiss.

On February 1, 1994 defendant-appellant filed a motion for relief from order pursuant to Civ.R. 60(A). On February 3, 1994 defendant-appellant filed a motion for relief from judgment pursuant to Civ.R. 60(B)(5). Plaintiff-appellee did not respond to defendant-appellant's motion for relief from order.

On April 5, 1994 the trial court granted defendant-appellant's motion for relief from order and ordered that the findings of fact and conclusions of law, first issued on June 6, 1992, be filed and served upon the parties. The trial court did not rule upon defendant-appellant's motion for relief from judgment.

On May 4, 1994 defendant-appellant filed a timely notice of appeal of the judgment of the trial court denying defendant-appellant's petition for post-conviction relief.

II. FIRST ASSIGNMENT OF ERROR

Defendant-appellant's first assignment of error states:

THE TRIAL COURT ERRED BY FAILING TO RULE UPON AND GRANT APPELLANT'S OHIO R.CIV.P. 60(B)(5) MOTION FOR RELIEF FROM JUDGMENT.

A. THE ISSUE RAISED: FINAL APPEALABLE ORDER

Defendant-appellant argues through his first assignment of error that the trial court violated defendant-appellant's constitutional rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution by failing to rule upon and grant the Civ.R. 60(B)(5) motion for relief from judgment. Before reaching the merits of defendant-appellant's first assignment of error, this court must first determine whether this assignment of error is ripe for review.

B. STANDARD OF REVIEW

R.C. 2505.02 states:

An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order vacates or sets aside a judgment and grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial.

When a court issues an order that vacates or sets aside a judgment or grants a new trial, the court, upon the request of either party, shall state in the order the grounds upon which the new trial is granted or the judgment vacated or set aside.

Pursuant to R.C. 2505.02, an order vacating a judgment under Civ.R. 60(B) is a final appealable order and an appeal therefrom must be taken within thirty days. Bourque v. Bourque (1986), 34 Ohio...