State v. Wagner

[Cite as State v. Wagner, 2013-Ohio-3493.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13-CA-9
:
STEVEN WAGNER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court
of Common Pleas, Case Nos. 98-CR-65
& 98-CR-144
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 7, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GREGG MARX STEVEN WAGNER, PRO SE
FAIRFIELD COUNTY PROSECUTOR Inmate No. 361523
JOCELYN S. KELLY Chillicothe Correctional Institution
239 W. Main St., Ste. 101 P.O. Box 5500
Lancaster, OH 43130 Chillicothe, OH 45601
Fairfield County, Case No.13-CA-9 2
Delaney, J.
{¶1} Appellant Steven Wagner appeals from the January 15, 2013 judgment
entry of the Fairfield County Court of Common Pleas denying his motion to correct
sentence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant's original convictions is
unnecessary to our disposition of this appeal.
{¶3} In June 1998, appellant was found guilty upon trial by jury of abduction,
felonious assault, and assault in Fairfield County Court of Common Pleas case no. 98
CR 65. On June 10, 1998, he was sentenced to an aggregate prison term of ten years:
three years upon the count of abduction to be served consecutively with seven years
upon the count of felonious assault. The trial court found merged the count of assault.
Appellant filed a direct appeal of his conviction and sentence in State v. Wagner, 5th
Dist. Fairfield No. 98CA42, 1999 WL 436749 (May 24, 1999). Appellant served his
entire imposed sentence as of June 2008.
{¶4} Appellant remained incarcerated due to a sentence imposed in a separate
case, Fairfield County Court of Common Pleas case no. 98 CR 144. In that case,
appellant was convicted of three counts of intimidation of a victim or witness and one
count of retaliation against the complainant in his original case. Appellant was
sentenced to an aggregate prison term of nine years in the latter case, to be served
consecutively to the original 10-year term. We affirmed appellant’s second conviction
Fairfield County, Case No.13-CA-9 3
upon his direct appeal in State v. Wagner, 5th Dist. Fairfield No. 99CA23, 2000 WL
1411 (Dec. 23, 1999), appeal not allowed, 88 Ohio St.3d 1480, 727 N.E.2d 131 (2000).
{¶5} In 2005, appellant filed a petition for post-conviction relief based upon
Blakely; the trial court denied the petition and we affirmed the decision in State v.
Wagner, 5th Dist. Fairfield No. 05-CA-45, 2005-Ohio-5209, appeal not allowed, 108
Ohio St.3d 1440, 2006-Ohio-421, 842 N.E.2d 64. Another attempt at post-conviction
relief was denied in 2006 and affirmed in State v. Wagner, 5th Dist. Fairfield No. 06-CA-
73, 2007-Ohio-3629.
{¶6} On November 27, 2012, appellant filed a “Motion to Correct Sentence”
under both case numbers, although his arguments addressed only his sentence in the
earlier case, 98-CR-65. The trial court overruled the motion on the bases that the
motion is an untimely petition for post-conviction relief and appellant’s arguments based
upon State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 do not
apply retroactively to his sentence.
{¶7} Appellant now appeals from the January 15, 2013 entry of the trial court.
{¶8} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶9} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
IMPOSING MULTIPLE PUNISHMENT (sic) FOR ALLIED OFFENSES.”
{¶10} “II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
RULING APPELLANT’S MOTION IS TIME BARRED.”
Fairfield County, Case No.13-CA-9 4
ANALYSIS
I, II.
{¶11} We will address appellant’s two assignments of error together. We find
the trial court correctly overruled appellant’s Motion to Correct Sentence for the
following reasons.
{¶12} First, we note appellant has failed to provide a transcript of the sentencing
hearing. As appellee points out, we have previously held that an appellant who
challenges his sentence is required to provide a transcript of the sentencing hearing
because the appellant must demonstrate error by reference to matters within the record.
State v. Boylen, 5th Dist. Stark Nos. 2006 CA 00125 & 20006 CA 00126, 2006-Ohio-
5685, ¶ **. Without the sentencing transcript, we presume the regularity of the
proceedings below and affirm. See, Knapp v. Edwards Laboratories, 61 Ohio St.2d
197, 199, 400 N.E.2d 384 (1980); App.R. 9(B).
{¶13} Even setting aside this procedural default, however, the trial court properly
found appellant’s motion is barred by res judicata. Appellant had a prior opportunity to
litigate the allied-offenses claims he sets forth in the instant appeal via a timely direct
appeal from the sentencing hearing and resulting judgment entry; his most recent round
of arguments are therefore barred under the doctrine of res judicata. State v. Perry, 10
Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the doctrine as
follows: “Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
Fairfield County, Case No.13-CA-9 5
have been raised by the defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment.” Id.{¶14} Finally, appellant’s arguments fail substantively. The Ohio Supreme
Court's holding in Johnson does not apply retroactively. State v. Halliday, 5th Dist.
Delaware No. 11CAA1101104, 2012-Ohio-2376, ¶ 16, citing State v. Parson, 2nd Dist.
Montgomery No. 24641, 2012–Ohio–730. The new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies. Id., citing Ali v. State, 104 Ohio St.3d 328,
2004–Ohio–6592.
CONCLUSION
{¶15} For the foregoing reasons, appellant’s two assignments of error are
overruled and the judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN