State v. Bunger

2012 Ohio 946

Opinion

[Cite as State v. Bunger, 2012-Ohio-946.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : Sheila G. Farmer, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. CT2011-0049 : : TERRY R. BUNGER : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Muskingum County Court of Common Pleas Case No. CT2005-0060

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 7, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT SMITH TERRY R. BUNGER Assistant Prosecuting Attorney P.O. Box 4501 27 North Fifth Street Lima, Ohio 45802 Zanesville, Ohio 43701 [Cite as State v. Bunger, 2012-Ohio-946.]

Edwards, J.

{¶1} Appellant, Terry R. Bunger, appeals a judgment of the Muskingum County

Common Pleas Court dismissing his complaint for specific performance. Appellee is the

State of Ohio.

STATEMENT OF FACTS AND CASE

{¶2} On March 3, 2005, appellant was indicted by the Muskingum County

Grand Jury with one count of rape in violation of R.C. 2907.02(A)(1)(b). The indictment

alleged that the victim was three years old. On January 3, 2006, appellant agreed to

enter a plea of guilty to an amended charge of attempted rape in violation of R.C.

2923.02(A) and R.C. 2907.02(A)(1)(b). The parties agreed to recommend a sentence

of eight years incarceration. On February 10, 2006, the court sentenced appellant to a

term of incarceration of eight years and classified him as a sexual predator. This Court

affirmed on appeal.

{¶3} Appellant was resentenced on May 7, 2010, to include a term of

postrelease control. Appellant filed an appeal from this judgment and this Court

affirmed.

{¶4} On August 10, 2011, appellant filed a complaint for specific performance.

In this complaint, he asked that the language “victim less than ten (10) years of age” be

stricken from his sentencing entry and various other documents filed in the case,

because he entered a plea of guilty to R.C. 2907.02(A)(1)(b), which specifies that the

victim is under thirteen years of age. The trial court dismissed the complaint for specific

performance. Muskingum County App. Case No. CT2011-0049 3

{¶5} Appellant filed a notice of appeal to this Court. He has failed to identify an

assignment of error as required by App. R. 16(A)(3). However, it appears from his brief

that appellant argues that the court erred in failing to change the language in his

sentencing entry from identifying the victim as less than ten years of age to the statutory

language of less than thirteen years of age.

{¶6} Appellant filed a direct appeal from both his original sentencing entry and

his resentencing entry, yet he failed to raise a claim that the language of the entry did

not properly reflect the language of the statute to which he entered a plea. 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, except an

appeal from that judgment, any defense or any claimed lack of due process that was

raised or could have been raised by the defendant at the trial which resulted in that

judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233, 1996-Ohio-337, syllabus. Appellant was represented by

counsel in his direct appeal from his sentencing in 2006 and on direct appeal from his

resentencing in 2010, yet failed to raise this claimed error. His claim is now barred by

res judicata.

{¶7} In addition, the record reflects that although the judgment entry of

resentencing refers to the plea as one to a charge of attempted rape where the victim

was under the age of ten rather than thirteen as set forth in the statute, the entry

properly reflects the correct Revised Code section to which appellant entered his 2006

plea, and the sentence of eight years was the sentence agreed to by the parties in the

plea agreement. The typographical error in the entry does not in any way affect Muskingum County App. Case No. CT2011-0049 4

appellant’s conviction or sentence, and the record reflects that the victim is in fact three

years of age.

{¶8} The judgment of the Muskingum County Common Pleas Court is affirmed.

By: Edwards, J.

Gwin, P.J. and

Farmer J. concur

______________________________

JUDGES [Cite as State v. Bunger, 2012-Ohio-946.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : TERRY R. BUNGER : : Defendant-Appellant : CASE NO. CT2011-0049

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Muskingum County Court of Common Pleas is affirmed. Costs

assessed to appellant.

_________________________________

JUDGES