[Cite as State v. Miley,

.]

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,

.]

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,

.

{¶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,

, 2008-Ohio-

3330,

. 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,

, 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.

State ex rel. Miley v.

Henson, Richland App. No. 2010-CA-0032,

. 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,

, 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,

, 2007–Ohio–256,

, 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

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.

, 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,

,

,

, 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,

,

.

{¶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,

.]

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