{¶ 2} We glean from the judgment entries attached to appellant's complaint that a multi-count indictment was filed against appellant in the Cuyahoga Cоunty Common Pleas Court in a case captioned State of Ohiov. Juan F. Moore. The case was assigned case number CR-399223. In February 2001, appellant entered guilty pleas tо, and was found guilty of, two of the offenses in this indictment; namely, abduction, in violation of R.C.
{¶ 3} More than three years later, in April 2004, appellant filed the within action for declaratory judgment. Succinctly, appellant sought a declaration that the sentence imposed in Case No. CR-399223 was both void and unenforceable and violative of his due process rights because the trial cоurt failed to comply with the statutory sentencing scheme set forth in R.C. Chapter 2929.
{¶ 4} The Prosecutor thereafter filed a pre-answer motion to dismiss рursuant to Civ.R. 12(B)(1) and (6), arguing that appellant could not collaterally attack his sentence by way of declaratory judgment. Appellant movеd for a default judgment. The court eventually granted the motion to dismiss, denied appellant's motion for default judgment and dismissed appellant's cоmplaint.
{¶ 5} Appellant is now before this court and assigns two errors for our review.
{¶ 7} It is true that Civ.R. 55 рrovides for a default judgment when a defendant "has failed to plead or otherwise defend as provided by these rules * * *." The Prosecutor, howеver, filed a pre-answer motion to dismiss under Civ.R. 12, which motion constitutes a defense of the action precluding judgment by default. Indeed, Civ.R. 12(B) provides that thе defenses of lack of subject-matter jurisdiction and failure to state a claim upon which relief can granted are defenses that may be made by motion. If the court thereafter denies a motion made under Civ.R. 12(B), the party then has 14 days within which to file an answer. Because the court granted the motion to dismiss and thereafter dismissed the complaint with prejudice, the Prosecutor was not required to submit an answer to appellant's complaint.
{¶ 8} Consequently, appellant was not entitled to a default judgment. Appellant's first assignment of error is not well taken and is overruled.
{¶ 10} When reviewing a judgment on a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted, an appellate court's standаrd of review is de novo. Perrysburg v. Rossford,
{¶ 11} In this case, аppellant sought declaratory relief under R.C.
{¶ 12} "* * * [A]ny person whose rights, status, or other legal relations are affected by a * * * statute * * * may havе determined any question of construction or validity arising under the * * * statute * * * and obtain a declaration of rights, status, or other legal relations under it."
{¶ 13} In determining whether a party is entitled to declaratory relief, it must be demonstrated that (1) a real controversy exists between the parties; (2) the сontroversy is justiciable in character; and (3) the situation requires speedy relief to preserve the rights of the parties. Burger Brewing Co. v. Liquor Control Comm. (1973),
{¶ 14} A declaratory judgment action, however, cannot be used as a substitute for an appeal or as a collateral attack upon a conviction. Declaratory relief "does not provide a means whereby previous judgments by statе or federal courts may be reexamined, nor is it a substitute for appeal or post conviction remedies." Shannon v. Sequeechi (C.A.10, 1966),
{¶ 15} "Neither [R.C.
{¶ 16} Here, appellant seeks a declaration that the sentence imposed in Case No. 399223 is unenforceable beсause specific findings under R.C. Chapter 2929 were not journalized in the court's sentencing entry. This is not a justiciable controversy capable of resolution by declaration under R.C. Chapter 2721. On the contrary, it is an argument properly raised by appeal, direct or delayed. The time for direct appeal under App.R. 4(A) having expired, appellant may have recourse under App.R. 5(A) by seeking leave for a delayed appeal. Relief by way of declaration under R.C. Chapter 2721, however, is not appropriate.
{¶ 17} Because appellant's cоmplaint sought relief which the court could not grant, it was not error for the court to grant the Prosecutor's motion to dismiss under Civ.R. 12(B)(6). Appellant's secоnd assignment of error is not well taken and is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxеd.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing thе Cuyahoga County Common Pleas Court 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.
Karpinski, P.J., and Kilbane, J., concur.