State v. Miley , 2013 Ohio 5673 ( 2013 )

[Cite as State v. Miley, 2013-Ohio-5673.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 13CA47
MILTON C. MILEY
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Common
Pleas Court, Case No. 05-CR-85 H
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 4, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. MILTON C. MILEY, PRO SE
Prosecuting Attorney Inmate Number 484-425
Richland County, Ohio c/o Allen Correctional Institution
P.O. Box 4501
By: JILL M. COCHRAN Lima, Ohio 45802
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13CA47 2
Hoffman, P.J.
{¶1} Defendant-appellant Milton C. Miley appeals the judgment entered by the
Richland County Court of Common Pleas denying his motion to vacate sentence.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF PROCEDURAL HISTORY1
{¶2} In 2004, Appellant was indicted by the Richland County Grand Jury on 55
counts in Case No. 2005 CR 0085, including rape, unlawful sexual conduct with a
minor, corrupting another with drugs and disseminating matter harmful to juveniles.
{¶3} On May 20, 2005, a jury returned a verdict of guilty as to all counts of the
indictment. On May 31, 2005, the trial court sentenced Appellant to a total prison term of
thirty-five years. The trial court further classified Appellant a sexual predator under R.C.
Chapter 2950. An appeal ensued.
{¶4} On September 8, 2006, this Court reversed Appellant's convictions and
remanded the matter for a new trial finding the trial court erred in admitting evidence of
Appellant's prior acts. State v. Miley, 5th Dist. Nos.2005–CA–67 and 2006–CA–14,
2006–Ohio–4670.
{¶5} On February 8, 2007, the Richland County Grand Jury indicted Appellant
on four additional charges alleging recently discovered evidence in Case No. 2007 CR
0163. On July 30, 2007, Appellant filed a motion to dismiss the 2007 indictment on
speedy trial grounds. The trial court overruled the motion, via Judgment Entry of
September 21, 2007. The trial court then consolidated the cases and scheduled a trial
date for October 8, 2007.
1
A rendition of the underlying facts is unnecessary for our disposition of this appeal.
Richland County, Case No. 13CA47 3
{¶6} On October 9, 2007, Appellant entered a plea of no contest to two of the
additional charges, counts 58 and 59, of having weapons under disability. Following a
trial by jury, Appellant was convicted on a total 57 counts, and sentenced to thirty-eight
years in prison, via two separate entries in Case Nos. 2005 CR 0085 and 2007 CR
0163. Appellant again appealed.
{¶7} In State v. Miley, 5th Dist. Nos. 07–CA–113 and 07–CA–114, 2009–Ohio–
570, this Court dismissed Appellant's appeal for lack of a final, appealable order
pursuant to the Ohio Supreme Court's decision in State v. Baker, 119 Ohio St. 3d 197,
2008–Ohio–3330, 893 N.E.2d 163. The entries at issue in the consolidated appeal did
not contain the manner of conviction; therefore, the entries were not final, appealable
orders pursuant to Baker.
{¶8} On February 13, 2009, the trial court issued amended sentencing entries.
Appellant filed an appeal of the February 13, 2009 amended sentencing entries. In
State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–4011, this Court first
found the trial court erred in not dismissing counts 58 and 59 charging having weapons
under disability because Appellant's speedy trial rights were violated. We affirmed the
remainder of the trial court's decision in relation to Appellant's conviction and sentence.
On December 2, 2009, the Ohio Supreme declined to accept the case on further
appeal.
{¶9} On March 17, 2010, Appellant filed a complaint requesting the issuance of
a writ of mandamus and/or procendendo compelling the trial court to issue a final,
appealable order, which complied with State v. Baker, supra. State ex rel. Miley v.
Henson, Richland App. No.2010–CA–0032, 2010–Ohio–4093. In that case, this Court
Richland County, Case No. 13CA47 4
reviewed the entries issued by the trial court on February 13, 2009, finding although this
Court allowed an appeal based upon the entries to proceed to a conclusion in State v.
Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–4011, the opinion on the merits
was improvidently issued because the order was not a final, appealable order because
the order did not contain a finding of guilt. This Court then ordered the trial court to issue
an entry which complied with the dictates of Baker.2
{¶10} On December 28, 2010, the trial court filed a Nunc Pro Tunc sentencing
entry in Case No.2005 CR 85H. The Court included amended language “the defendant
had been found guilty” by a jury, and also clarified the terms of postrelease control.
{¶11} Appellant again filed an appeal to this Court in State v. Miley 5th Dist. No.
2011CA0005, 2011-Ohio-5647. This Court held,
{¶12} "Applying Lester, we find appellant's convictions were upheld on direct
appeal by this Court in State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–
4011 and the Ohio Supreme Court declined jurisdiction. The convictions were based
upon the entries issued by the trial court on February 13, 2009. Upon review, we find
the entry in the underlying case fully complied with the requirements of Crim.R. 32(C),
and as set forth in the Lester syllabus. Appellant's 2009 judgment of conviction was
final, and any new challenges to it are barred by the doctrine of res judicata. The nunc
pro tunc entry by its very nature applies retrospectively to the judgment it corrects and is
not a new final order from which a new appeal may be taken to again challenge the
underlying conviction.
2
The State suggests this order was limited to the sentencing entry reflecting appellant's
plea of no contest to the weapons charges in Case No. 2007 CR 163, nevertheless this
Court issued the writ in regards to Case No. 2005 CR 85.
Richland County, Case No. 13CA47 5
{¶13} "Although Appellant does not challenge on appeal the modified terms of
postrelease control, we note that the doctrine of res judicata still applies to all other
aspects of the conviction, including the determination of guilt. State v. Fischer, 128 Ohio
St.3d 92, 2010–Ohio–6238."
{¶14} On April 1, 2013, Appellant filed a motion to vacate sentence and to
resentence. Via Judgment Entry of May 2, 2013, the trial court overruled the motion to
vacate and resentence. Appellant now appeals, assigning as error:
{¶15} “I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT
APPELLANT’S MOTION TO VACATE SENTENCE AND RESENTENCE IN
ACCORDANCE WITH CRIMINAL RULE 32 (B) VIOLATING HIS RIGHTS TO EQUAL
PROTECTION UNDER THE LAW AND RIGHT TO DUE PROCESS AS GUARANTEED
BY BOTH THE UNITED STATES AND THE OHIO CONSTITUTIONS.”
{¶16} In the sole assignment of error Appellant maintains the trial court erred in
denying his motion to vacate and resentence in accordance with Criminal Rule 32(B).
Appellant alleges he was never properly advised of his rights pursuant to Criminal Rule
32(B); therefore, he must be resentenced accordingly.
{¶17} As set froth in the Statement of Procedural History above, Appellant was
sentenced on December 22, 2007. On two occasions this Court found the sentencing
entries relative to Appellant's sentence did not constitute final appealable orders. On
December 28, 2010, the trial court issued an amended entry clarifying the terms of
postrelease control and indicating Appellant had been found guilty of the charges and
the manner of conviction. This Court found further arguments barred by the doctrine of
res judicata. Appellant filed an appeal to this Court. As set forth above, this Court held,
Richland County, Case No. 13CA47 6
{¶18} "Applying Lester, we find appellant's convictions were upheld on direct
appeal by this Court in State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–
4011 and the Ohio Supreme Court declined jurisdiction. The convictions were based
upon the entries issued by the trial court on February 13, 2009. Upon review, we find
the entry in the underlying case fully complied with the requirements of Crim.R. 32(C),
and as set forth in the Lester syllabus. Appellant's 2009 judgment of conviction was
final, and any new challenges to it are barred by the doctrine of res judicata. The nunc
pro tunc entry by its very nature applies retrospectively to the judgment it corrects and is
not a new final order from which a new appeal may be taken to again challenge the
underlying conviction.
{¶19} "Although Appellant does not challenge on appeal the modified terms of
postrelease control, we note that the doctrine of res judicata still applies to all other
aspects of the conviction, including the determination of guilt. State v. Fischer, 128 Ohio
St.3d 92, 2010–Ohio–6238."
{¶20} As such, we find Appellant's arguments raised in the motion to vacate and
resentence an attempt to circumvent his prior invocation of the appellate process. We
again find his present arguments barred by the doctrine of res judicata.
{¶21} This case is factually distinguishable from State v. Hunter, 2010-Ohio-657,
cited by Appellant, as Appellant was represented by counsel at the time of sentencing
herein, has failed to fully demonstrate the trial court did not comply with Criminal Rule
32 at the time he was sentenced, and Appellant has previously directly appealed his
sentence to this Court.
Richland County, Case No. 13CA47 7
{¶22} Accordingly, the May 2, 2013 Judgment Entry denying Appellant's motion
to vacate and resentence is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
___________________________________
HON. CRAIG R. BALDWIN
Richland County, Case No. 13CA47 8
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MILTON C. MILEY :
:
Defendant-Appellant : Case No. 13CA47
For the reasons stated in our accompanying Opinion, the May 2, 2013 Judgment
Entry of the Richland County Court of Common Pleas is affirmed. Costs to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
___________________________________
HON. CRAIG R. BALDWIN