State v. Pendleton ( 2012 )

[Cite as State v. Pendleton, 2012-Ohio-3049.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
: Case Nos. 11-CA-51
RAYMOND PENDLETON : 11-CA-52
: 11-CA-53
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case Nos. 2008CR426 and
2008CR498
JUDGMENT: Dismissed
DATE OF JUDGMENT: June 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ ELIZABETH N. GABA
20 South Second Street 1231 East Broad Street
4th Floor Columbus, OH 43205
Newark, OH 43055
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 2
Farmer, J.
{¶1} On June 27, 2008, the Licking County Grand Jury indicted appellant,
Raymond Pendleton, on six counts of trafficking in drugs in violation of R.C. 2925.03,
two counts of possession of drugs in violation of R.C. 2925.11, and one count of
engaging in a pattern of corrupt activities in violation of R.C. 2923.32 (Case No.
08CR426). The indictment also included forfeiture and firearm specifications.
{¶2} On July 25, 2008, the Licking County Grand Jury indicted appellant on one
count of intimidation in violation of R.C. 2921.03 and one count of retaliation in violation
of R.C. 2921.05 (Case No. 08CR498).
{¶3} On January 14, 2009, appellant pled guilty to five of the trafficking counts
and the forfeiture specification in Case No. 08CR426, and entered an Alford no contest
plea on the retaliation count in Case No. 08CR498. The remaining counts and firearm
specification were to be dismissed. By judgment entries filed same date, the trial court
found appellant guilty of the retaliation count and sentenced appellant to an aggregate
term of eleven years in prison on all counts. On February 26, 2009, the trial court filed a
nunc pro tunc judgment entry to include a finding on the forfeiture specification.
{¶4} Appellant filed an appeal on March 27, 2009.
{¶5} On October 8, 2009, appellant filed with the trial court a motion for a final
appealable order.
{¶6} On October 26, 2009, this court dismissed appellant's appeal, finding the
order appealed from was not a final appealable order because pending counts were still
before the trial court.
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 3
{¶7} On October 30, 2009, appellee, the state of Ohio, nolled the remaining
counts.
{¶8} On July 16, 2010, the trial court denied appellant's motion for a final
appealable order. Appellant filed an appeal on July 29, 2010. By opinion and judgment
entry filed April 25, 2011, this court affirmed the trial court's decision, finding once the
remaining counts were disposed of, the sentencing entries became final appealable
orders. State v. Pendleton, Licking App. Nos. 10 CA 81 and 10 CA 82, 2011-Ohio-
2024.
{¶9} On May 12, 2011, appellant filed three appeals on the trial court's January
14, 2009 and February 26, 2009 judgment entries. These matters are now before this
court for consideration. Assignments of error are as follows:
I
{¶10} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
ACCEPTING THE POLICE STACKING OF CRIMINAL CHARGES WHICH VIOLATES
R.C. §2935.03(A)(1), AND BY SENTENCING DEFENDANT CONSECUTIVELY BASED
ON THESE ILLEGALLY STACKED CHARGES."
II
{¶11} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
ACCEPTING THE POLICE STACKING OF CRIMINAL CHARGES WHICH VIOLATES
DEFENDANT'S DUE PROCESS RIGHTS UNDER THE OHIO CONSTITUTION AND
THE 5TH AND 14TH AMENDMENTS AND VIOLATES HIS 8TH AMENDMENT
RIGHTS, AND BY SENTENCING DEFENDANT CONSECUTIVELY BASED ON
THESE UNFAIRLY STACKED CHARGES."
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 4
III
{¶12} "THE COURT ERRED TO THE PREJUDICE OF DEFENDANT AND
DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED WHERE
THE COURT ACCEPTED GUILTY PLEAS IN THIS CASE GIVEN UNDER THE
INFLUENCE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL."
IV
{¶13} "THE COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
ACCEPTING DEFENDANT'S GUILTY PLEAS, WHEN THE GUILTY PLEAS GIVEN IN
THIS CASE WERE NOT KNOWINGLY, INTELLIGENTLY OR VOLUNTARILY GIVEN
DUE TO THE FACT THAT THE PLEA FORM FAILED TO ADVISE THE DEFENDANT
THAT THE MANDATORY SENTENCE IF ALL COUNTS WERE RUN
CONSECUTIVELY WAS 11 YEARS, IN VIOLATION OF DEFENDANT'S 5TH AND 6TH
AMENDMENT RIGHTS."
V
{¶14} "THE STATE FILED ALL ITS DISCOVERY IN THE COURT FILE, TO
PROVIDE MATERIALS TO THE COURT FOR THE COURT TO RELY ON IN
DETERMINING THE STATE'S AND DEFENDANT'S SUBSTANTIVE RIGHTS. THE
DISCOVERY RECORD IS PRESENTED TO THE COURT TO INVOKE ITS POWER
OR AFFECT ITS DECISIONS. THE COURT ERRED TO THE PREJUDICE OF
DEFENDANT IN ACCEPTING THIS TACTIC OF THE STATE, BECAUSE THE STATE
HAD MATERIALLY PREJUDICED ANY AND ALL ADJUDICATIVE PROCEEDINGS IN
THE CASE FROM THE MOMENT IT FILED DISCOVERY."
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 5
VI
{¶15} "THE COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN
THE JUDGE DID NOT RECUSE, AS THE SEARCH WARRANT RETURN WAS
SIGNED BY THE JUDGE WHO PRESIDED OVER THE SUPPRESSION HEARING OF
THE INVENTORIED FRUITS OF THAT RETURN AND THIS SAME JUDGE
ULTIMATELY DECIDED THE SENTENCE OF THE DEFENDANT."
{¶16} Appellant's six assignments of error claim the matter is ripe for his direct
appeal of his January 14, 2009/February 26, 2009 convictions.
{¶17} Appellant first filed an appeal on March 27, 2009. This court, upon
appellant's request for remand, dismissed the appeal, finding the order appealed from
was not a final appealable order because pending counts were still before the trial court.
{¶18} On October 30, 2009, the trial court dismissed the outstanding counts.
With the perfection of a final appealable order on October 30, 2009, appellant pursued
an appeal in Case Nos. 10 CA 81 and 10 CA 82, citing the following assignments of
error:
{¶19} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY SUMMARILY
DISMISSING THE APPELLANT'S 'MOTION FOR A FINAL APPEALABLE ORDER'.
THERE IS NO VALID 'FINAL ORDER' IN THE APPELLANT'S CRIMINAL CASES 426
AND 498."
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 6
{¶20} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY SUMMARILY
DISMISSING THE APPELLANT'S 'MOTION FOR A FINAL APPEALABLE ORDER'.
THE STATE DID NOT DISPOSE OF APPELLANT'S REMAINING COUNTS IN OPEN
COURT, THUS, THEY REMAIN PENDING AND THERE IS NO FINAL APPEALABLE
ORDER."
{¶21} "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY FAILING TO
PREPARE AND JOURNALIZE A FINAL ENTRY WITHIN THIRTY DAYS IN
VIOLATION OF RULE 7 OF THE RULES OF SUPERINTENDENCE, CIVIL RULE 58,
AND CRIMINAL RULE 32. APPELLANT IS ENTITLED TO BE DISCHARGED FROM
IMPRISONMENT."
{¶22} "IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT
APPELLANT, AS IT WAS WITHOUT AUTHORITY TO SENTENCE THE DEFENDANT
TO FIVE YEARS OF POST RELEASE CONTROL, AS SUCH, SAID SENTENCE IS
VOID AS A MATTER OF LAW AND MUST BE CORRECTED UNDER R.C. §2929.191."
{¶23} By opinion and judgment entry filed April 25, 2011, this court affirmed the
appeals. State v. Pendleton, Licking App. Nos. 10 CA 81 and 10 CA 82, 2011-Ohio-
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 7
2024. Appellant now argues he is perfecting his direct appeals. We find this position to
be in error for the following reasons.
{¶24} With the dismissal of the outstanding counts on October 30, 2009, the
matter was ripe for direct appeal at that time.
{¶25} "An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is***[a]n order that affects a substantial right in
an action that in effect determines the action and prevents a judgment[.]" R.C.
2505.02(B)(1).
{¶26} Despite having a final order on October 30, 2009, appellant did not file an
appeal until July 29, 2010 and argued in Case Nos. 10 CA 81 and 10 CA 82 (oral
argument heard on March 10, 2011) that there was no final appealable order, and also
argued a sentencing issue in Assignment of Error IV. This appeal was appellant's direct
appeal. After this court affirmed his convictions, appellant filed three appeals, claiming
to be appealing the original 2009 convictions.
{¶27} Appellant cannot have two bites of the apple without requesting an App.R.
26(B) appeal or requesting a delayed appeal. Neither request was made to this court.
{¶28} Upon review, we conclude we lack jurisdiction to decide the assignments
of error presented sub judice.
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53 8
{¶29} Based upon the foregoing, the appeals are dismissed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer________________
s/ William B. Hoffman______________
s/ John W. Wise__________________
JUDGES
SGF/sg 614
[Cite as State v. Pendleton, 2012-Ohio-3049.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee : JUDGMENT ENTRY
:
-vs- :
:
RAYMOND PENDLETON : Case Nos. 11-CA-51
: 11-CA-52
Defendant-Appellant : 11-CA-53
For the reasons stated in our accompanying Memorandum-Opinion, the appeals
are dismissed. Costs to appellant.
s/ Sheila G. Farmer________________
s/ William B. Hoffman______________
s/ John W. Wise__________________
JUDGES