State v. Miley

[Cite as State v. Miley, 2011-Ohio-5647.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
v. :
: Case No. 2011 CA 0005
MILTON C. MILEY :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 05 CR 85H
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 31, 2011
APPEARANCES:
For Appellant: For Appellee:
MILTON C. MILEY, PRO SE JAMES J. MAYER, JR.
#484-425 Madison C.I. RICHLAND COUNTY PROSECUTOR
P.O. Box 740
London, OH 43140 DANIEL J. BENOIT
38 S. Park St.
Mansfield, OH 44902
[Cite as State v. Miley, 2011-Ohio-5647.]
Delaney, J.
{¶1} Defendant-Appellant Milton C. Miley appeals the December 28, 2010
Nunc Pro Tunc Sentencing Entry of the Richland County Court of Common Pleas.
Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} In 2004, Appellant was indicted by the Richland County Grand Jury on 55
counts in Case No. 2005 CR 0085, for rape, unlawful sexual conduct with a minor,
corrupting another with drugs and disseminating matter harmful to juveniles.
{¶3} On May 20, 2005, a jury returned a verdict of guilty as to all counts of the
indictment. On May 31, 2005, the trial court sentenced Appellant to a total prison term
of thirty-five years. The trial court further classified Appellant a sexual predator under
R.C. Chapter 2950. An appeal ensued.
{¶4} On September 8, 2006, this Court reversed Appellant's conviction and
remanded the matter for a new trial finding the trial court erred in admitting evidence of
Appellant's prior acts. State v. Miley, 5th Dist. Nos. 2005-CA-67 and 2006-CA-14,
2006-Ohio-4670.
{¶5} On February 8, 2007, the Richland County Grand Jury indicted Appellant
on four additional charges alleging recently discovered evidence in Case No. 2007 CR
0163. On July 30, 2007, Appellant filed a motion to dismiss the 2007 indictment on
speedy trial grounds. The trial court overruled the motion, via Judgment Entry of
1
A Statement of Facts is unnecessary to the disposition of this appeal.
Richland County, Case No. 2011 CA 0005 3
September 21, 2007. The trial court then consolidated the cases and scheduled a trial
date for October 8, 2007.
{¶6} On October 9, 2007, Appellant entered a plea of no contest to two of the
additional charges, counts 58 and 59, of having weapons under disability. Following a
trial by jury, Appellant was convicted on a total 57 counts, and sentenced to thirty-eight
years in prison, via two separate entries in Case Nos. 2005 CR 0085 and 2007 CR
0163. Appellant again appealed.
{¶7} In State v. Miley, 5th Dist. Nos. 07-CA-113 and 07-CA-114, 2009-Ohio-
570, we dismissed Appellant’s appeal for lack of a final, appealable order pursuant to
the Ohio Supreme Court’s decision in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-
3330, 893 N.E.2d 163. The entries at issue in the consolidated appeal did not contain
the manner of conviction; therefore, the entries were not final, appealable orders
pursuant to Baker.
{¶8} On February 13, 2009, the trial court issued amended sentencing entries.
Appellant filed an appeal of the February 13, 2009 amended sentencing entries. In
State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009-Ohio-4011, this Court first
found the trial court erred in not dismissing counts 58 and 59 charging having weapons
under disability because Appellant’s speedy trial rights were violated. We affirmed the
remainder of the trial court’s decisions in relation to Appellant’s proceedings and
Appellant’s conviction and sentence. On December 2, 2009, the Ohio Supreme declined
to accept the case on further appeal.
{¶9} On March 17, 2010, Appellant filed a complaint requesting the issuance of
a writ of mandamus and/or procendendo compelling the trial court to issue a final,
Richland County, Case No. 2011 CA 0005 4
appealable order, which complied with State v. Baker, supra. State ex rel. Miley v.
Henson, Richland App. No. 2010-CA-0032, 2010-Ohio-4093. In that case, we reviewed
the entries issued by the trial court on February 13, 2009. We found that although this
Court allowed an appeal based upon these entries to proceed to a conclusion in State v.
Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009-Ohio-4011, the opinion on the merits
was improvidently issued because the order was not a final, appealable order because
the order did not contain a finding of guilt. We ordered the trial court to issue an entry
which complied with the dictates of Baker.2
{¶10} On December 28, 2010, the trial court filed a Nunc Pro Tunc sentencing
entry in Case No. 2005 CR 85H. It included amended language that “the defendant had
been found guilty” by a jury and it clarified the terms of postrelease control. It is from this
sentencing entry that Appellant now appeals.
ASSIGNMENTS OF ERROR
{¶11} Appellant raises six Assignments of Error:
{¶12} “I. THIS COURT IS WITHOUT JURISDICTION TO CONSIDER THIS
APPEAL AS IT IS PREDICATED ON A FINAL JUDGMENT FROM A TRIAL THAT
WAS VOID AS IT WAS PREDICATED ON AN ORDER OF THIS COURT THAT WAS
ISSUED WITHOUT A [SIC] JURISDICTION AS THE JOURNAL ENTRY DATED JUNE
6, 2005, WAS NOT A FINAL APPEALABLE ORDER AND AS SUCH, NEVER
ESTABLISHED APPELLATE JURISDICTION TO ORDER THE SECOND TRIAL.
2
The State suggests this order was limited to the sentencing entry reflecting appellant’s plea of no
contest to the weapons charges in Case No. 2007 CR 163, nevertheless this Court issued the writ in
regards to Case No. 2005 CR 85.
Richland County, Case No. 2011 CA 0005 5
{¶13} “II. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT’S
MOTION TO DISMISS FOR VIOLATING HIS CONSTITUTIONAL RIGHT TO SPEEDY
TRIAL GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶14} “III. THE TRIAL COURT ERRED IN NOT DISMISSING THE
APPELLANT’S INDICTMENT(S) THAT ARE CONSTITUTIONALLY INSUFFICIENT TO
CHARGE ANY CRIMINAL OFFENSE WHATSOEVER UNDER OHIO LAW,
VIOLATING APPELLANT’S RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND ARTICLE I,
SECTION 10 OF THE OHIO CONSTITUTION.
{¶15} “IV. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
SENTENCES ON THE APPELLANT WHEN NO SUCH STATUTORY AUTHORITY
EXISTS FOR THE IMPOSITION SUCH, VIOLATING THE APPELLANT’S
CONSTITUTIONAL RIGHTS PURSUANT TO THE 5TH, 6TH, AND 14TH AMENDMENTS
TO THE U.S. CONSTITUTION, & ARTICLE IV, §10 OF THE OHIO CONSTITUTION.
{¶16} “V. A CRIMINAL DEFENDANT IS DENIED DUE PROCESS WHERE THE
EVIDENCE WAS INSUFFICIENT TO SUPPORT HIS CONVICTIONS, IN
PARTICULAR, THE ‘STATUTORY’ RAPE CONVICTIONS UNDER R.C.
2901.02(A)(1)(B)(2) WHERE THE ALLEGED VICTIM WAS OVER THE AGE OF
THIRTEEN YEARS, AND THOSE CONVICTIONS ARE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶17} “VI. THE JURY VERDICT FORM WAS NOT SUFFICIENT TO SUPPORT
THE FELONY CONVICTION FOR WHICH THE APPELLANT WAS SENTENCED
Richland County, Case No. 2011 CA 0005 6
PURSUANT TO R.C. 2945.75, THE VERDICT FORMS NEITHER SPECIFIED THE
DEGREE OF THE OFFENSE OR THE AGGRAVATING ELEMENT THAT HAD BEEN
FOUND TO JUSTIFY CONVICTING THE APPELLANT OF A GREATER DEGREE OF
A CRIMINAL OFFENSE, VIOLATING THE APPELLANT’S RIGHT TO DUE
PROCESS.”
I., II., III., IV., V., VI.
{¶18} We will collectively address appellant’s claimed errors as they set forth
issues that were raised or could have been raised in prior proceedings before this
Court.
{¶19} In his first assignment of error, Appellant argues this Court did not have
jurisdiction to render a decision on his original conviction in 2005 because there was no
final, appealable order. In the second assignment of error, he argues that the trial court
should have dismissed the indictments after we reversed his original conviction because
his speedy trial rights were violated.
{¶20} In the third assignment of error, he argues that his original indictment was
defective. In the fourth assignment of error, he argues that the trial court erred in
sentencing him to consecutive sentences.
{¶21} In his fifth assignment of error, Appellant argues that the evidence was
insufficient to support his convictions and that his convictions were against the manifest
weight of the evidence.
{¶22} In Appellant’s sixth assignment of error, he argues that his convictions are
invalid because under State v. Pelfrey, 112 Ohio St.3d 422, 2007–Ohio–256, 860
N.E.2d 735, the verdict form must either include the degree of the offense or a
Richland County, Case No. 2011 CA 0005 7
statement that an aggravating element has been found to justify convicting him of a
greater degree of a criminal offense. Appellant asserts that the verdict form did not
specify the level of the offense, the section of the revised code that was violated, and/or
an additional element that would raise the level of offense.
{¶23} Because the judgment entry from which Appellant now appeals was
issued in light of the Ohio Supreme Court decision in Baker, supra, this Court must
review and apply a recent decision by the Ohio Supreme Court which explained and
modified the holding in Baker. In State v. Lester, Slip Opinion No. 2011-Ohio-5204, the
Ohio Supreme Court was asked to determine this question: Is a nunc pro tunc judgment
entry that is issued for the sole purpose of complying with Crim.R. 32(C) to correct a
clerical omission in a prior final judgment entry a new final order from which a new
appeal may be taken? On October 13, 2011, the Ohio Supreme Court concluded that
no new right of appeal is created by such an entry.
{¶24} In Lester, the trial court issued a nunc pro tunc entry to include the
manner of conviction (i.e. convicted by a verdict at jury trial) and Lester appealed from
the nunc pro tunc entry to the Third District Court of Appeals. Before the matter was set
for briefing, the appellate court sua sponte dismissed the appeal for lack of jurisdiction.
The court concluded that the nunc pro tunc entry had been issued “for the sole purpose
of retrospectively correcting a clerical omission in the prior sentencing judgment to
comply with Crim.R. 32. No new or substantial right was affected under R.C.
2505.02(A)(1) [the final-order statute] by correction of the sentencing judgment to reflect
what actually occurred and what clearly was evident throughout the record, and
especially, to appellant. Appellant exhausted the appellate process when the
Richland County, Case No. 2011 CA 0005 8
resentencing judgment was reviewed and affirmed on appeal, and the Ohio Supreme
Court declined to accept it on further appeal.” State v. Lester, (May 12, 2010) 3rd Dist.
No. 2-10-20.
{¶25} The Ohio Supreme Court affirmed the judgment of the court of appeals,
holding at the syllabus:
{¶26} “A judgment of conviction is a final order subject to appeal under R.C.
2505.02 when it sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s
signature, and (4) the time stamp indicating the entry upon the journal by the clerk.
(Crim.R. 32(C), explained; State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163, modified.)
{¶27} “(2) A nunc pro tunc judgment entry issued for the sole purpose of
complying with Crim.R. 32(C) to correct a clerical omission in a final judgment entry is
not a new final order from which a new appeal may be taken.”
{¶28} Applying Lester, we find appellant’s convictions were upheld on direct
appeal by this Court in State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009-Ohio-
4011 and the Ohio Supreme Court declined jurisdiction. The convictions were based
upon the entries issued by the trial court on February 13, 2009. Upon review, we find
the entry in the underlying case fully complied with the requirements of Crim.R. 32(C),
and as set forth in the Lester syllabus. Appellant’s 2009 judgment of conviction was
final, and any new challenges to it are barred by the doctrine of res judicata. The nunc
pro tunc entry by its very nature applies retrospectively to the judgment it corrects and is
not a new final order from which a new appeal may be taken to again challenge the
underlying conviction.
Richland County, Case No. 2011 CA 0005 9
{¶29} Although Appellant does not challenge on appeal the modified terms of
postrelease control, we note that the doctrine of res judicata still applies to all other
aspects of the conviction, including the determination of guilt. State v. Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238.
{¶30} Appellant’s Assignments of Error are overruled.
{¶31} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Hoffman, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
[Cite as State v. Miley, 2011-Ohio-5647.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MILTON C. MILEY :
:
: Case No. 2011 CA 0005
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN