State v. Millette , 2013 Ohio 1331 ( 2013 )

[Cite as State v. Millette, 2013-Ohio-1331.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P. J.
: John W. Wise, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 12-CA-0074
:
:
ROGER MILLETTE : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Licking County
Court of Common Pleas Case No.
2004-CR-00032
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 2, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ROGER MILLETTE
Licking County Prosecutor HCI, ID. # AA487-908
20 South Second Street, 4th Floor P.O. Box 59
Newark, Ohio 43055 Nelsonville, Ohio 45764
[Cite as State v. Millette, 2013-Ohio-1331.]
Wise, J.
{¶1} Appellant, Roger Millette, appeals a judgment of the Licking County
Common Pleas Court overruling his “Motion to Correct Illegal Sentence.” Appellee is
the State of Ohio.
{¶2} In 2005, appellant was indicted on charges of aggravated robbery,
aggravated burglary, kidnapping, attempted rape, intimidation of a witness and two
counts of gross sexual imposition following an incident where he broke into the home of
a pregnant woman to rob her, threatened her with a knife, made her strip nearly naked
and tied her to a bed. In exchange for dismissal of the attempted rape charge, appellant
pleaded guilty to the remaining charges. He was sentenced to 8 years incarceration for
aggravated burglary, 8 years for aggravated robbery, 8 years for kidnapping, 3 years for
intimidation and 3 years for each count of gross sexual imposition. All counts were to
run consecutively for an aggregate term of 33 years.
{¶3} On January 10, 2011, appellant filed a motion seeking to correct his
sentence for failure to impose postrelease control. The State responded by requesting
that appellant be resentenced pursuant to State v. Fischer, 128 Ohio St.3d 92, 942
N.E.2d 332, 2010–Ohio–6238. Resentencing was scheduled for February 16, 2011 and
counsel was appointed to represent appellant at resentencing.
{¶4} On February 15, 2011, the day before the resentencing hearing, appellant
filed a motion to withdraw his guilty plea on the basis that postrelease control was not
validly imposed, and a motion to dismiss the resentencing proceedings on the grounds
that his sentence is now res judicata.
Licking County App. Case No. 12-CA-0074 3
{¶5} The case proceeded to a resentencing hearing in the Licking County
Common Pleas Court. The court overruled appellant's motion to withdraw his plea and
his motion to dismiss the proceedings. Appellant orally argued that the convictions for
robbery, burglary, kidnapping and intimidation of a witness should merge as allied
offenses of similar import. The court sentenced appellant to the same sentence
originally imposed in this case with the addition of a mandatory term of five years
postrelease control on all counts other than intimidation of a witness, on which the court
imposed three years of postrelease control. He appealed from the resentencing entry,
arguing that his convictions were allied offenses of similar import. We affirmed, finding
the issue to be res judicata. State v. Millette, 5th Dist. No. 11-CA-23, 2011-Ohio-6357.
{¶6} Appellant then filed a Motion to Correct Illegal Sentence, arguing again
that his offenses were allied offenses of similar import. The trial court treated the motion
as an untimely petition for postconviction relief pursuant to R.C. 2953.21(A)(2), and
overruled the motion on the basis of res judicata.
{¶7} Appellant assigns a single error on appeal:
{¶8} “MR. MILLETTE IS BEING ILLEGALLY IMPRISONED FOR ALLIED
OFFENSES OF SIMILAR IMPORT AND HAS BEEN DENIED DUE PROCESS BY THE
TRIAL COURT’S FAILURE TO EVEN CONSIDER THE ILLEGALITY OF HIS
SENTENCE.”
{¶9} Appellant does not assign as error the trial court’s decision to treat his
motion as a petition for postconviction relief. As noted by the trial court, R.C.
2953.21(A)(2) governs the time within which a petition for postconviction relief must be
filed:
Licking County App. Case No. 12-CA-0074 4
{¶10} “(2) Except as otherwise provided in section 2953.23 of the Revised Code,
a petition under division (A)(1) of this section shall be filed no later than one hundred
eighty days after the date on which the trial transcript is filed in the court of appeals in
the direct appeal of the judgment of conviction or adjudication or, if the direct appeal
involves a sentence of death, the date on which the trial transcript is filed in the
supreme court. If no appeal is taken, except as otherwise provided in section 2953.23 of
the Revised Code, the petition shall be filed no later than one hundred eighty days after
the expiration of the time for filing the appeal.”
{¶11} The trial transcript was filed in this Court on March 29, 2011, and appellant
did not file the instant petition until April 18, 2012. Appellant does not claim error in the
court’s finding that his motion was an untimely motion for postconviction relief.
{¶12} Further, the issue appellant seeks to raise is res judicata, as the issue
could have been raised on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d
104 (1967), State v. Nichols, 11 Ohio St. 3d 40, 463 N.E.2d 375 (1984).
Licking County App. Case No. 12-CA-0074 5
{¶13} The assignment of error is overruled.
{¶14} The judgment of the Licking County Common Pleas Court is affirmed.
Costs to appellant.
By: Wise, J.
Gwin, P.J. and
Delaney, J. concur
______________________________
______________________________
______________________________
JUDGES
JWW/r0308
[Cite as State v. Millette, 2013-Ohio-1331.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
ROGER MILLETTE :
:
Defendant-Appellant : CASE NO. 12-CA-0074
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Licking County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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_________________________________
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JUDGES