[Cite as State v. Guiley,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. -vs- : : DARYL LYNN GUILEY : Case No. 2013CA00211 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2012-CR-1434

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 12, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO DARYL LYNN GUILEY #634-296 Prosecuting Attorney Marion Correctional Institution P.O. Box 57 By: RONALD MARK CALDWELL Marion, OH 43301-0057 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza South, Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2013CA00211 2

Baldwin, J.

{¶1} Appellant Daryl Lynn Guiley appeals a judgment of the Stark County

Common Pleas Court overruling his motion to correct his sentence. Appellee is the

State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} In 2012, appellant was charged by indictment with one count of attempted

murder, two counts of felonious assault, and one count of domestic violence. Appellant

entered a guilty plea to the attempted murder charge and one of the felonious assault

charges, while the remaining charges were dismissed. He was sentenced to eight

years incarceration for attempted murder and three years for felonious assault, to be

served concurrently. The sentencing entry states, “Pursuant to R.C. 2953.08(D), the

sentence of eight (8) years in prison imposed for the offenses are [sic] authorized by

law, has been approved jointly by the defendant and the prosecution.” Judgment Entry,

January 16, 2013.

{¶3} On August 12, 2013, appellant filed a motion to correct his sentence. The

trial court summarily overruled the motion. Appellant assigns four errors on appeal to

this Court:

{¶4} “I. TRIAL COURT ERRED IN NOT ADVISING OF THE RIGHT TO

APPEAL PURSUANT TO CRIMINAL RULE 32(B).

{¶5} “II. TRIAL COURT ERRED BY NOT CONSIDERING THE NECESSARY

FACTORS SET FORTH IN OHIO REVISED CODE 2929.11 AND 2929.12. Stark County, Case No. 2013CA00211 3

{¶6} “III. TRIAL COURT ERRED WHEN CONVICTING OF CHARGES THAT

WERE TO BE MERGED AS ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT

TO OHIO REVISED CODE SECTION 2941.25.

{¶7} “IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO

DETERMINE THE NUMBER OF DAYS OF CONFINEMENT OWED TO APPELLANT

PRIOR TO SENTENCING.”

I.-IV.

{¶8} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, other than a direct appeal from the judgment, any defense or lack of due

process that was raised or could have been raised at the trial which resulted in the

judgment of conviction, or on appeal from that judgment. State v. Szefcyk,

,

,

, syllabus. The issues raised by appellant in his

motion to correct the sentence and in the instant appeal are all sentencing issues

cognizable on direct appeal from his judgment of conviction and sentence, and

appellant’s collateral attack on the judgment on these grounds is barred by res judicata.

{¶9} We recognize that appellant may not have been entitled to appellate

review of his sentence based on R.C. 2953.08(D)(1), which provides:

{¶10} “A sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the

defendant and the prosecution in the case, and is imposed by a sentencing judge.” Stark County, Case No. 2013CA00211 4

{¶11} However, to allow a defendant to collaterally attack a judgment on

grounds he could have raised on direct appeal if they had not barred by R.C.

2953.08(D)(1) would render that statute a nullity.

{¶12} Accordingly, appellant’s four assignments of error are overruled. The

judgment of the Stark County Common Pleas Court is affirmed. Costs are assessed to

appellant.

By: Baldwin, J.

Gwin, P.J. and

Farmer, J. concur.