State v. Myers

[Cite as State v. Myers, 2018-Ohio-1871.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-063
Appellee Trial Court No. 2013CR0141
v.
Craig R. Myers DECISION AND JUDGMENT
Appellant Decided: May 11, 2018
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Craig R. Myers, pro se.
*****
JENSEN, J.
{¶ 1} In this accelerated appeal, appellant, Craig Myers, appeals the judgment of
the Wood County Court of Common Pleas, denying his “motion to vacate sentence and
judgment.” This judgment entry is not an opinion of the court. See S.Ct.R.Rep.Op. 2;
App.R. 11.1(E); 6th Dist.Loc.App.R. 12.
{¶ 2} On appeal, appellant assigns the following errors for our review:
FIRST ASSIGNMENT OF ERROR: The Trial Court abused [its]
discretion, by stating that a Trial Court, State Prosecutor, as well as State
Appellate [Courts], do not have to honor the Legislative Intent of the
Retaliation statute, that was set forth by the Legislative Body in House Bill
88.
SECOND ASSIGNMENT OF ERROR: The State Prosecution,
committed Plain Error in obtaining an indictment for the criminal offense
of Retaliation R.C. 2921.05(A) prior to the judicial decision in the
underlying offense(s) for the case of State v. Myers, 2011 CR 364.
Appellant Myers, was deprived of his rights to a Grand Jury indictment, to
due process and a fair trial pursuant to Art. I, Section 10 of the Ohio
Constitution and the Fifth and Fourteenth Amendment to the United States
Constitution when the indictment failed to include all the essential elements
of the offense charged and the jury was never instructed on the rendering of
the underlying offense(s) in a judicial decision. The misconduct of the
Prosecutor so tainted the trial with unfairness that Appellant Myers, was
denied due process, and a fair trial in violation of the Fifth and Fourteenth
Amendment to the United States Constitution, and article I Section X of the
Ohio Constitution.
2.
THIRD ASSIGNMENT OF ERROR: Plain Error pursuant to
Crim.R. 52(B) can occur within improper instructions to a grand jury, and
or trial court jury.
FOURTH ASSIGNMENT OF ERROR: The Court of Appeals of
Ohio, Sixth Appellate District for Wood County, committed Plain Error
pursuant to Crim.R. 52(B) in upholding Appellant Myers’ conviction.
{¶ 3} We will address appellant’s assignments of error out of order. In his fourth
assignment of error, appellant takes issue with our decision in State v. Myers, 6th Dist.
Wood No. WD-15-017, 2016-Ohio-223, in which we affirmed appellant’s conviction for
retaliation. Our decision was subsequently appealed to the Ohio Supreme Court, which
denied discretionary review. State v. Myers, 146 Ohio St.3d 1414, 2016-Ohio-3390, 51
N.E.3d 659. Appellant now argues that our decision in Myers was inconsistent with a
2011 decision we issued. This argument is clearly barred by res judicata as it could have
been raised in an appeal to the Ohio Supreme Court or in a motion for reconsideration
with this court. Consequently, appellant’s fourth assignment of error is not well-taken.
{¶ 4} In his first three assignments of error, appellant challenges the trial court’s
denial of his motion to vacate his sentence. Since these assignments of error are
interrelated, we will address them simultaneously.
{¶ 5} A basic review of the procedural facts of this case will suffice to address
appellant’s first three assignments of error. On September 29, 2017, appellant filed a
notice of appeal with this court, in which he appealed from the trial court’s February 6,
3.
2015 judgment entry of conviction following a jury trial where he was found guilty of
retaliation in violation of R.C. 2921.05(A)(C) and sentenced to 30 months in prison.
Approximately three weeks later, appellant filed his motion to vacate his sentence with
the trial court. The trial court denied appellant’s motion to vacate on November 29,
2017. On December 4, 2017, we issued our decision denying appellant’s motion for
leave to file a delayed appeal. Appellant has since filed a notice of appeal with the Ohio
Supreme Court, which remains pending.
{¶ 6} “Once a case has been appealed, the trial court loses jurisdiction except to
take action in aid of the appeal. The trial court retains jurisdiction over issues not
inconsistent with the appellate court’s jurisdiction to reverse, modify, or affirm the
judgment appealed from.” (Internal citations omitted.) In re S.J., 106 Ohio St.3d 11,
2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9.
{¶ 7} Here, we find that the trial court lacked jurisdiction to consider appellant’s
motion to vacate his sentence. Had the trial court granted appellant’s motion, we would
have been unable to reverse, modify, or affirm the judgment entry of conviction in the
appeal that was pending before this court. See State v. Rogers, 8th Dist. Cuyahoga No.
101063, 2014-Ohio-3924, ¶ 6 (finding that trial court lacked jurisdiction to consider
motion to vacate during the pendency of an appeal because such consideration would
interfere with the appellate court’s jurisdiction). Because the trial court acted without
jurisdiction, the denial of appellant’s motion to vacate was a nullity. We lack jurisdiction
to hear this appeal and we therefore dismiss the appeal.
4.
{¶ 8} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Appeal dismissed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
5.