State v. Buxton

2014 Ohio 507

• Court: Ohio Court of Appeals
• Decided: February 10, 2014
• Docket: 13-COA-035
• Status: Published

Opinion

[Cite as State v. Buxton, 2014-Ohio-507.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : DENNY R. BUXTON : Case No. 13-COA-035 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas, Case No. 04-CRI-089

JUDGMENT: Affirmed

DATE OF JUDGMENT: February 10, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RAMONA J. ROGERS DENNY BUXTON, PRO SE Prosecuting Attorney #474-778 2500 South Avon Beldon Rd. By: JOSHUA T. ASPIN Grafton, OH 44044 Assistant Prosecuting Attorney 110 Cottage Street, Third Fl. Ashland, OH 44805 Ashland County, Case No. 13-COA-035 2

Baldwin, J.

{¶1} Defendant-appellant Denny Buxton appeals from the October 2, 2013

Judgment Entry of the Ashland County Court of Common Pleas. Plaintiff-appellee is the

State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 26, 2004, the Ashland County Grand Jury indicted appellant

on three (3) counts of burglary in violation of R.C. 2911.12(A)(3), felonies of the third

degree, and two (2) counts of grand theft in violation of R.C. 2913.02(A)(1), felonies of

the fourth degree. Appellant was arraigned on January 10, 2005.

{¶3} On March 2, 2005, appellant pleaded guilty to two (2) counts each of

burglary and grand theft. The remaining count was dismissed. Pursuant to a Judgment

Entry filed on April 15, 2005, appellant was sentenced to five (5) years in prison on each

of the burglary counts and 18 months in prison on each of the attempted grand theft

counts. The trial court ordered that the five (5) year sentences on the burglary counts

were to be served consecutively. Furthermore, the sentence on each one of the

attempted grand theft counts was ordered to be served concurrently to each one of the

burglary counts. Thus, the aggregate sentence was ten years. In addition, the trial court

ordered appellant to pay restitution to one of the victims in the amount of $250.00 and to

pay restitution to another victim, James Biddinger, in an amount to be determined

pursuant to a future court order.

{¶4} Via a Judgment Entry filed on August 11, 2005, the trial court vacated the

requirement that appellant pay restitution to James Biddinger because Biddinger had Ashland County, Case No. 13-COA-035 3

been given an opportunity to provide restitution information to the court and had failed to

do so.

{¶5} Appellant then appealed. Pursuant to an Opinion filed on May 20, 2006 in

State v. Buxton, 5th Dist. Ashland No. 05COA020, 2006-Ohio-2521, this Court

reversed the judgment of the trial court and remanded the matter for resentencing in

accordance with State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1.

{¶6} A resentencing hearing was held on July 24, 2006. At such time, appellant

withdrew his request for resentencing and, as memorialized in a Judgment Entry filed

on August 3, 2006, was sentenced to the same sentence. The trial court, in its

Judgment Entry, again ordered appellant to pay restitution in the amount of $250.00 to

one of the victims. However, the trial court did not order appellant to pay restitution to

any other victim.

{¶7} Appellee, on November 9, 2009, filed a Motion to Resentence and request

for hearing to address the term of post-release control that appellant would be facing

upon his release from prison. On June 8, 2010, the trial court issued a Nunc Pro Tunc

Sentencing Judgment Entry that advised appellant of post-release control. The trial

court, in its Judgment Entry, indicated that such entry “contains exact advisements give

to the Defendant concerning post-release control at his original sentencing hearing.”

{¶8} Appellant appealed from the June 8, 2010 Judgment Entry. On

September 22, 2010, this Court dismissed appellant’s appeal for want of prosecution.

{¶9} Thereafter, on June 28, 2013, appellant filed a Motion for Final Appealable

Order. Appellant, in his motion, argued that the April 15, 2005 Judgment Entry was not Ashland County, Case No. 13-COA-035 4

a final appealable order because, with respect to one of the victims, James Biddinger,

the trial court stated that the amount of restitution would be determined at a later date

by the court. Appellee filed a memorandum contra appellant’s motion on July 2, 2013.

{¶10} The trial court, pursuant to a Judgment Entry filed on October 2, 2013,

denied appellant’s motion. The trial court, in its Judgment Entry, found that appellant

was barred by the doctrine of res judicata from raising the issue raised in his motion and

that he failed to raise such issue on appeal.

{¶11} Appellant now appeals from the trial court’s October 2, 2013 Judgment

Entry, raising the following assignment of error on appeal:

{¶12} A TRIAL COURT ABUSES ITS DISCRETION IN DENYING A

DEFENDANT’S MOTION FOR FINAL APPEALABLE ORDER IN THIS MATTER FOR

NOT COMPLYING WITH THE MANDATORY STATUTORY LANGUAGE AS SET

FORTH IN R.C. 2929.18(A)(1).

I

{¶13} Appellant, in his sole assignment of error, argues that the trial court erred

in denying his Motion for Final Appealable Order because the trial court did not comply

with R.C. 2929.18(A)(1), which concerns restitution. We disagree.

{¶14} Appellant, in his motion, argued that the April 15, 2005 Judgment Entry

was not a final appealable order because, with respect to one of the victims, James

Biddinger, the trial court stated that the amount of restitution would be determined at a

later date by the court. On such basis, appellant argued that the trial court did not

comply with R.C. 2919.18(A)(1) which provides that if the court imposes restitution at

sentencing, the court must determine the amount of restitution at that time. Ashland County, Case No. 13-COA-035 5

{¶15} However, pursuant to a Judgment Entry filed on August 11, 2005, the trial

court vacated the requirement that appellant pay restitution to James Biddinger because

Biddinger had been given an opportunity to provide restitution information to the court

and had failed to do so. Moreover, subsequently, on July 24, 2006, appellant was

resentenced following reversal by this Court. The trial court’s August 3, 2006 Judgment

Entry, which superseded the April 15, 2005 Judgment Entry, ordered appellant to pay

$250.00 to one of the victims, but deleted the requirement that appellant pay restitution

in an amount be later determined to Biddinger. Thus, contrary to appellant’s assertion,

there is no court entry ordering appellant to pay restitution to James Biddinger

{¶16} Appellant’s sole assignment of error is, therefore, overruled. Ashland County, Case No. 13-COA-035 6

{¶17} Accordingly, the judgment of the Ashland Count Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.

HON. CRAIG R. BALDWIN

HON. W. SCOTT GWIN

HON. JOHN W. WISE

CRB/dr