State v. Walker , 2012 Ohio 2523 ( 2012 )


Menu:
  • [Cite as State v. Walker, 
    2012-Ohio-2523
    .]
    COURT OF APPEALS
    RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                      JUDGES:
    Hon. Patricia A. Delaney, P.J.
    Plaintiff-Appellee                         Hon. William B. Hoffman, J.
    Hon. Sheila G. Farmer, J.
    -vs-
    Case No. 12CA0001
    GARY D. WALKER
    Defendant-Appellant                        OPINION
    CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
    Pleas Court, Case No. 2009CR00052D
    JUDGMENT:                                      Affirmed
    DATE OF JUDGMENT ENTRY:                         June 6, 2012
    APPEARANCES:
    For Plaintiff-Appellee                         For Defendant-Appellant
    KEN EGBERT, JR.                                GARY D. WALKER
    Special Prosecuting Attorney                   Inmate No. 554-324
    One Government Center, #1340                   c/o Richland Correctional Inst.
    Toledo, Ohio 43604                             1001 Olivesburg Road
    Mansfield, Ohio 44901
    Richland County, Case No. 12CA0001                                                     2
    Hoffman, J.
    {¶1}   Defendant-appellant Gary D. Walker appeals his sentence entered by the
    Richland County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.
    STATEMENT OF THE CASE
    {¶2}   After the commencement of a jury trial in the Richland County Court of
    Common Pleas, Appellant indicated he would change his pleas to forty-seven felony
    counts, including engaging in a pattern of corrupt activity, forgery, and theft, with
    forfeiture specifications. The trial court conducted a change of plea hearing outside the
    presence of the jury and accepted Appellant's pleas of guilty. The trial court then
    sentenced Appellant to a total of twelve years in prison. The sentencing entry included
    an order Appellant serve three years of mandatory post release control.
    {¶3}   Appellant filed a notice of appeal from his 2009 convictions and sentence
    on July 1, 2009. However, on September 24, 2009, this Court dismissed the appeal
    upon Appellant's motion.
    {¶4}   On September 28, 2009, Appellant filed a pro se “motion for sentencing,”
    claiming the trial court had not properly advised him of the consequences of post-
    release control violations.
    {¶5}   On December 7, 2009, Appellant filed an “urgent motion to take judicial
    notice,” apparently seeking resentencing.
    {¶6}   On December 30, 2009, the trial court conducted a video conference
    hearing to notify Appellant of his PRC obligations. The next day, December 31, 2009,
    Appellant filed a motion to withdraw his guilty pleas, citing Crim.R. 32.1. He
    subsequently added a memorandum in support thereof.
    Richland County, Case No. 12CA0001                                                         3
    {¶7}   On January 14, 2010, Appellant filed a motion to dismiss counts two
    through thirty-four of his indictment, alleging lack of jurisdiction of the grand jury.
    {¶8}   On March 24, 2010, the trial court denied Appellant's motion to withdraw
    guilty pleas. Appellant did not appeal that denial.
    {¶9}   On April 12, 2010, Appellant filed a “motion for final judgment,” asserting
    the trial court had not disposed of the odd-numbered counts in the indictment (three
    through forty-three), as well as, two other counts in the indictment (forty-four and forty-
    six).
    {¶10} In the interim, the trial court had yet to issue a written judgment entry
    addressing the results of the PRC video hearing of December 30, 2009. Accordingly, on
    July 28, 2010, the trial court issued a judgment entry stating, inter alia, Appellant “has
    been notified personally of the consequences of a post-release control violation
    pursuant to R.C. 2929.19(B)(3)(e) * * *.”
    {¶11} On August 27, 2010, Appellant filed a “motion for re-sentencing to correct
    void sentence.”
    {¶12} On September 7, 2010, the trial court filed an amended sentencing entry.
    This entry was virtually identical to the sentencing entry of June 2, 2009, but it specified,
    per the agreement of the parties at the 2009 change of plea hearing, each odd-
    numbered count (three through forty-three) was merged into its preceding even-
    numbered count. Count forty-four was dismissed, while count forty-six was merged into
    count forty-five.
    {¶13} On September 28, 2010, Appellant filed a notice of appeal of the
    September 7, 2010 amended sentencing entry.
    Richland County, Case No. 12CA0001                                                    4
    {¶14} Via Opinion and Judgment Entry of August 10, 2011, this Court held the
    issues raised on appeal were barred under the doctrine of res judicata. State v. Walker,
    No. 10 CA 116, 
    2011-Ohio-4005
    .
    {¶15} Appellant now appeals the original June 2, 2009 Sentencing Entry and the
    September 7, 2010 Amended Sentencing Entry assigning as error:
    {¶16} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO ISSUE A FINAL,
    APPEALABLE ORDER THAT SET FORTH THE FOUR SUBSTANTIAL PROVISION
    [SIC] PURSUANT TO STATE V. LESTER, 
    2011-OHIO-5204
    , 
    2011 WL 4862414
    , WITH
    RESPECT     TO    FORFEITURE       SPECIFICATION ON         [SIC]   OF   APPELLANT’S
    INDICTMENT.
    {¶17} “II. THE TRIAL COURT ERRED WHEN IT FAILED TO ISSUE A FINAL,
    APPEALABLE ORDER THAT SET FORTH THE FOUR SUBSTANTIAL PROVISIONS
    PURSUANT TO STATE V. LESTER, 
    2011-OHIO-5204
    , 
    2011 WL 4862414
    , WITH
    RESPECT TO FORFEITURE SPECIFICATION TWO OF APPELLANT’S INDICTMENT.
    {¶18} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO ISSUE A FINAL,
    APPEALABLE ORDER THAT SET FORTH THE FOUR SUBSTANTIAL PROVISIONS
    PURSUANT TO STATE V. LESTER, 
    2011-OHIO-5204
    , 
    2011 WL 4862414
    , WITH
    RESPECT      TO    FORFEITURE       SPECIFICATION       THREE       OF   APPELLANT’S
    INDICTMENT.
    {¶19} “IV. THE TRIAL COURT ERRED WHEN IT FAILED TO ISSUE A FINAL,
    APPEALABLE ORDER WITH RESPEC [SIC] TO THE ODD NUMBER COUNTS IN
    APPELLANT’S INDICTMENT, THEREBY VIOLATING STATE V. BAKER, 119 OHIO
    ST.3d 197, 
    2008-OHIO-3330
    .
    Richland County, Case No. 12CA0001                                                        5
    {¶20} “V. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S
    MOTION FOR A REVISED SENTENCING ENTRY, WITH RESPECT TO ISSUEING
    [SIC] A FINAL, APPEALABLER [SIC] ORDER IN REGARDS TO THE FEES TO BE
    IMPOSED UNDER R.C. 2929.18.”
    I, II, III.
    {¶21} Appellant's first, second, and third assignments of error raise common and
    interrelated issues; therefore, we will address the arguments together.
    {¶22} In entering a final appealable order in a criminal case, the trial court must
    comply with Crim.R. 32(C), which states: “A judgment of conviction shall set forth the
    plea, the verdict or findings, and the sentence. If the defendant is found not guilty or for
    any other reason is entitled to be discharged, the court shall render judgment
    accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal.
    A judgment is effective only when entered on the journal by the clerk.” Journalization of
    the judgment of conviction pursuant to Crim.R. 32(C) starts the 30–day appellate clock
    ticking. App.R. 4(A); see also State v. Tripodo (1977), 
    50 Ohio St.2d 124
    , 
    4 O.O.3d 280
    ,
    
    363 N.E.2d 719
    .
    {¶23} In State v. Baker 
    119 Ohio St.3d 197
    , 
    2008-Ohio-3330
    , the Ohio Supreme
    Court held,
    {¶24} "We now hold that a judgment of conviction is a final appealable order
    under R.C. 2502.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding
    of the court upon which the conviction is based; (2) the sentence; (3) the signature of
    the judge; and (4) entry on the journal by the clerk of court. Simply stated, a defendant
    is entitled to appeal an order that sets forth the manner of conviction and the sentence."
    Richland County, Case No. 12CA0001                                                       6
    {¶25} Appellant asserts the trial court's original June 2, 2009 and amended
    September 7, 2010 sentencing entries are not final appealable orders under the
    holdings of State v. Baker and State v. Lester 
    130 Ohio St.3d 303
    , 
    2011-Ohio-5204
    ,
    because the trial court failed include all the substantial provisions of the sentence,
    specifically the forfeiture specifications.
    {¶26} In State v. Lester, 
    130 Ohio St. 303
    , 
    2011-Ohio-5204
    , the Ohio Supreme
    Court held,
    {¶27} “When the substantive provisions of [Criminal Rule 32(C)] are contained in
    the judgment of conviction, namely, the fact of conviction, the sentence, the judge’s
    signature, and the entry on the journal by the clerk, the trial court’s omission of how the
    defendant’s conviction was effected, i.e., the ‘manner of conviction’ does not prevent the
    judgment of conviction from being an order that is final and subject to appeal; language
    as to manner of conviction is required only as a matter of form, provided the entry
    includes all substantive provisions.”
    {¶28} The Indictment herein reads, "Count I, Engaging in a Pattern of Corrupt
    Activity" and contains three specifications as to Count 1. Each specification subjects a
    different vehicle to forfeiture under Count 1, each vehicle having been involved in the
    offense of Engaging a Pattern of Corrupt Activity under Count 1.
    {¶29} The June 2, 2009 Sentencing Entry states as part of the sentence,
    Appellant "shall forfeit 3 vehicles according to the indictment."
    {¶30} The September 7, 2010 Amended Sentencing Entry states, "The
    defendant shall…forfeit 3 vehicles according to his conviction for the Forfeiture
    Specification attached to Court 1 of the indictment."
    Richland County, Case No. 12CA0001                                                       7
    {¶31} While     the   Amended      Entry    should    properly   read    "Forfeiture
    Specification(s)", we find both the June 2, 2009 sentencing entry and the September 7,
    2010 amended sentencing entry substantively set forth the sentence in conformity with
    Criminal Rule 32(C) and Baker's one document rule. See Lester, 
    supra.
    {¶32} This case is distinguishable from the decision of the Third District in State
    v. Shults, No. 13-10-42, August 29, 2011, wherein the trial court did not make the
    forfeiture order part of the original judgment entry of sentence.
    {¶33} We conclude the June 2, 2009 and September 7, 2010 sentencing entries
    were final and appealable orders.
    {¶34} Accordingly, Appellant's first, second, and third assignments of error are
    overruled.
    IV, V.
    {¶35} Upon review of Appellant's fourth and fifth assignments of error, the
    arguments include issues which were previously raised or could have been previously
    raised in prior proceedings before this Court. Therefore, we find the arguments raised
    therein are barred from further consideration under the doctrine of res judicata.
    {¶36} The fourth and fifth assignments of error are overruled.
    Richland County, Case No. 12CA0001                                            8
    {¶37} Appellant's sentence in the Richland County Court of Common Pleas is
    affirmed.
    By: Hoffman, J.
    Delaney, P.J. and
    Farmer, J. concur
    s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ Sheila G. Farmer __________________
    HON. SHEILA G. FARMER
    Richland County, Case No. 12CA0001                                                  9
    IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                              :
    :
    Plaintiff-Appellee                  :
    :
    -vs-                                       :         JUDGMENT ENTRY
    :
    GARY D. WALKER                             :
    :
    Defendant-Appellant                 :         Case No. 12CA0001
    For the reasons stated in our accompanying Opinion, Appellant's sentence in the
    Richland County Court of Common Pleas is affirmed. Costs to Appellant.
    s/ William B. Hoffman _________________
    HON. WILLIAM B. HOFFMAN
    s/ Patricia A. Delaney _________________
    HON. PATRICIA A. DELANEY
    s/ Sheila G. Farmer __________________
    HON. SHEILA G. FARMER
    

Document Info

Docket Number: 12CA0001

Citation Numbers: 2012 Ohio 2523

Judges: Hoffman

Filed Date: 6/6/2012

Precedential Status: Precedential

Modified Date: 10/30/2014