State v. Flugga

[Cite as State v. Flugga , 2011-Ohio-3807.]
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. Patricia A. Delaney, J.
-vs-
Case No. 11-CA-25
COREY FLUGGA
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 08 CR 00448
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 28, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT COREY FLUGGA, PRO SE
LICKING COUNTY PROSECUTOR Institutional Number 596-828
P.O. Box 7010
BY: DANIEL H. HUSTON Chillicothe, Ohio 45601
Assistant Prosecutor
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 11-CA-25 2
Hoffman, P.J.
{¶1} Defendant-appellant Corey Flugga appeals the February 14, 2011
Judgment Entry entered by the Licking County Court of Common Pleas which denied
his Motion for De Novo Sentencing. The State of Ohio is plaintiff-appelle.
STATEMENT OF THE CASE1
{¶2} Appellant was convicted of two counts of murder in 2009. Appellant
appealed to this Court and we affirmed his convictions in State v. Flugga (October 19,
2009), Licking County Appeal No. 2009-CA-5, 2009-Ohio-5648.
{¶3} On September 23, 2009, Appellant filed a petition for post-conviction relief.
The trial court denied Appellant’s petition. Appellant also appealed that decision to this
Court and we affirmed the trial court’s decision in State v. Flugga (September 7, 2010),
Licking County App. No. 09-CA-140, 2010-Ohio-4237.
{¶4} Thereafter, Appellant filed a Motion for De Novo Sentencing on October
20, 2010, arguing his sentence needed to be corrected to reflect his two convictions for
murder should have been merged. The trial court denied his motion via Judgment Entry
filed February 14, 2011. It is from that judgment entry Appellant prosecutes this appeal,
assigning as error:
{¶5} “I. WHETHER THE TRIAL COURT ERRED IN DENYING THE
APPELLANTS MOTION FOR DE NOVO SENTENCING BASED ON THAT IT LACKED
JURISDICTION.
{¶6} “II. WHETHER THE TRIAL COURT ERRED IN DENYING THE
APPELLANTS MOTION BASED ON RES JUDICATA.”
1
A rendition of the facts is unnecessary for our resolution of this Appeal.
Licking County, Case No. 11-CA-25 3
II
{¶7} We address this assignment of error first as we find it dispositive of this
Appeal pursuant to the two-issue rule.
{¶8} We find the trial court correctly determined Appellant’s claim for relief was
barred by the doctrine of res judicata; not just once, but twice. Appellant could have
raised this argument in his first direct appeal but did not. Furthermore, Appellant did
raise this issue on appeal from denial of his prior post-conviction relief petition. This
court specifically found the issue was barred by res judicata then and still is now.
{¶9} Appellant’s attempts to resurrect this issue by merely changing the title on
the motion and asserting his original sentence is void. We find his argument without
merit. The trial court correctly denied Appellant’ motion based upon the doctrine of res
judicata.
{¶10} Appellant’s second assignment of error is overruled.
I
{¶11} Based upon our disposition of Appellant’s second assignment of error,
Appellant’s first assignment of error is moot.
Licking County, Case No. 11-CA-25 4
{¶12} The judgment of the trial court is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Licking County, Case No. 11-CA-25 5
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
COREY FLUGGA :
:
Defendant-Appellant : Case No. 11-CA-25
For the reasons set forth in our accompanying Opinion, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY