State v. Nero ( 2013 )

[Cite as State v. Nero, 2013-Ohio-3610.]
COURT OF APPEALS
STARK 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 Nos. 2013CA00050,
PATRICK D. NERO 2013CA00054
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case Nos. 2011-CR-1129,
2011-CR-0566
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 19, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO PATRICK D. NERO, PRO SE
PROSECUTING ATTORNEY, Trumbull Correctional Institution
STARK COUNTY, OHIO Inmate No. 621-612
P.O. Box 901
By: RONALD MARK CALDWELL Leavittsburg, Ohio 44430
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case Nos. 2013CA00050, 2013CA00054 2
Hoffman, P.J.
{¶1} Defendant-appellant Patrick Dwayne Nero appeals the February 15, 2013
Judgment Entry entered by the Stark County Court of Common Pleas denying his
motion to correct void sentence and for final appealable order. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was indicted by the Stark County Grand Jury on one count of
having a weapon under disability and one count of illegal possession of a firearm in a
liquor permit premises. The weapons under disability charge listed seven prior criminal
cases giving rise to ten convictions, eight felonies and two misdemeanors, which
created the disability element for the offense.
{¶3} Following a jury trial, Appellant was convicted as charged in the indictment
and sentenced to an aggregate term of incarceration of three years imposed
consecutive to a three-year prison term in a separate criminal case. The trial court
memorialized the conviction and sentence via Judgment Entry of December 23, 2011.
In a subsequent Judgment Entry, the trial court accorded Appellant 155 days of jail-time
credit. On October 15, 2012, this Court affirmed Appellant's convictions and sentence
on direct appeal in State v. Nero, Stark App. No. 2012-CA-00016, 2012-Ohio-4810.
{¶4} On February 12, 2013, Appellant filed a motion to correct void sentence
and for final appealable order arguing his original sentencing entry did not include jail
time credit; thus, the sentencing entry was void. Appellant moved the trial court for
resentencing in order to include the jail time credit.
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case Nos. 2013CA00050, 2013CA00054 3
{¶5} The trial court denied the motion via Judgment Entry of February 15,
2013.
{¶6} Appellant now appeals, assigning as error:
{¶7} “I. TRIAL COURT ERRED WHEN IT FAILED TO CALCULATE AND
INCLUDE THE SPECIFIC NUMBER OF DAYS APPELLANT WAS TO RECEIVE FOR
JAIL TIME CREDIT IN HIS SENTENCING JUDGMENT ENTRY. THIS MAKES
APPELLANT’S SENTENCE VOID AND THE JUDGMENT ENTRY A NON-FINAL
APPEALABLE ORDER PURSUANT TO STATE V. BAKER, 119 OHIO ST.3d 197.
THIS MAY ALSO BE CONSIDERED PLAIN ERROR.”
I.
{¶8} As set forth in the Statement of the Case, supra, the trial court's December
23, 2011 Judgment entry indicates Appellant is “entitled to jail time credit which will be
calculated by the Sheriff and the number of days inserted in a certified copy of an order
which shall be forwarded to the institution at a later date." Via separate Judgment Entry
of January 11, 2012, the trial court accorded Appellant jail time credit, indicating the
specific number of days. Appellant does not challenge the calculation of jail time credit
as improper; rather, argues the trial court erred in failing to include the specific
calculation of jail time credit in the original entry.
{¶9} We find Appellant's sentence is not contrary to law. Further, Appellant did
not challenge either the calculation or the facts upon which the calculation was based
on direct appeal. We find the issue raised herein was capable of being raised on direct
appeal to this Court. (See, State v. Nero, Stark App. No. 2012-CA-00016, 2012-Ohio-
Stark County, Case Nos. 2013CA00050, 2013CA00054 4
4810.) Accordingly, we find Appellant's argument is barred by the doctrine of res
judicata.
{¶10} The February 15, 2013 Judgment Entry entered by the Stark County Court
of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Baldwin, J. concur
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
___________________________________
HON. CRAIG R. BALDWIN
Stark County, Case Nos. 2013CA00050, 2013CA00054 5
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
PATRICK D. NERO :
:
Defendant-Appellant : Case No. 2013CA00050
For the reason stated in our accompanying Opinion, the February 15, 2013
Judgment Entry entered by the Stark County Court of Common Pleas is affirmed. Costs
to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
___________________________________
HON. CRAIG R. BALDWIN
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
PATRICK D. NERO :
:
Defendant-Appellant : Case No. 2013CA00054
For the reason stated in our accompanying Opinion, the February 15, 2013
Judgment Entry entered by the Stark County Court of Common Pleas is affirmed. Costs
to Appellant.
___________________________________
HON. WILLIAM B. HOFFMAN
___________________________________
HON. JOHN W. WISE
___________________________________
HON. CRAIG R. BALDWIN