State v. Driver

2011 Ohio 690

Opinion

[Cite as State v. Driver, 2011-Ohio-690.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vs- Case No. 2010CA00133 ARTEMUS DRIVER

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 1999CR0515

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: February 14, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO KENNETH W. FRAME PROSECUTING ATTORNEY, Stark County Public Defender Office STARK COUNTY, OHIO 200 West Tuscarawas, Suite 200 Canton, Ohio 44702 BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2010CA00133 2

Hoffman, J.

{¶1} Defendant-appellant Artemus Driver appeals the April 12, 2010 Judgment

Entry entered by the Stark County Court of Common Pleas which resentenced him on

one count of rape, one count of felonious assault and one count of kidnapping. The

State of Ohio is plaintiff-appellee.

STATEMENT OF THE CASE1

{¶2} Appellant was found guilty of the aforementioned charges following a trial

by jury. The trial court entered convictions of the charges and sentenced Appellant via

Judgment Entry journalized August 26, 1999.

{¶3} Appellant filed a direct appeal from the August 26, 1999 Judgment Entry in

this Court. We affirmed the trial court’s judgment entry. See State v. Driver (October

23, 2000), Stark App. No. 1999-CA-00290, unreported.

{¶4} On April 12, 2010, the trial court resentenced Appellant pursuant to the

direction of the Ohio Supreme Court as pronounced in State v. Singleton (2009), 124

Ohio St.3d 173, 2009-Ohio-6434. The new sentence was journalized April 19, 2010. It

is from that judgment entry Appellant prosecutes this appeal assigning as error:

{¶5} “I. THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO

ARGUE AND PRESENT EVIDENCE REGARDING APPELLANT’S PRIOR BAD ACTS.

{¶6} “II. THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A

CONVICTION, AND THE JURY’S VERDICT WAS AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.”

1 A rendition of the facts is unnecessary for our disposition of this appeal. Stark County, Case No. 2010CA00133 3

I & II

{¶7} Because the same rationale for our decision applies to both assignments

of error, we was shall address them together.

{¶8} The entry under review was generated in accordance with the procedure

set forth in Singleton to correct errors or deficiencies involving notification and

journalization of post release control sanctions, committed during a defendant’s initial

sentencing. Appellant’s present assignments of error were or could have been raised in

his initial direct appeal to this Court.

{¶9} This Court has repeatedly held such resentencings do not allow a

defendant to challenge anew his conviction(s) as such is barred under the principles of

law of the case and/or res judciata. This Court’s position has been validated by two

recent Ohio Supreme Court decisions: State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-

5283; and State v. Fischer, 2010-Ohio-6238. Pursuant to Ketterer and Fischer,

Appellant’s two assignments of error are overruled.

{¶10} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur

s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN

s/ John W. Wise______________________ HON. JOHN W. WISE Stark County, Case No. 2010CA00133 4

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ARTEMUS DRIVER : : Defendant-Appellant : Case No. 2010CA00133

For the reasons stated in our accompanying Opinion, the April 19, 2010

Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to

Appellant.

s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN

s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN

s/ John W. Wise______________________ HON. JOHN W. WISE