[Cite as State v. Fields, 2014-Ohio-5233.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : GERALD D. FIELDS : Case No. CT2014-0025 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2009-0166
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 24, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH GERALD D. FIELDS, PRO SE 27 North Fifth Street #617-709 Zanesville, OH 43701 F.M.C. P.O. Box 23658 1800 Harmon Avenue Columbus, OH 43223 Muskingum County, Case No. CT2014-0025 2
Farmer, J.
{¶1} On October 13, 2009, appellant, Gerald Fields, pled guilty to one count of
trafficking in drugs in violation of R.C. 2925.03 and one count of permitting drug abuse
in violation of R.C. 2925.13. By journal entry filed November 9, 2009, the trial court
sentenced appellant to an aggregate term of nine years in prison. Appellant's case was
affirmed on appeal. State v. Fields, 5th Dist. Muskingum No. CT2009-0057, 2010-Ohio-
6233 (Fields I). Appellant's appeal to the Supreme Court of Ohio was not accepted for
review. State v. Fields, 128 Ohio St.3d 1459, 2011-Ohio-1829.
{¶2} On April 19, 2011, appellant filed a motion for postconviction relief which
was denied on April 21, 2011. On June 21, 2011, appellant filed a motion to vacate or
set aside conviction or sentence and a motion to amend same on June 23, 2011 which
were denied on June 29, 2011. These decisions were affirmed on appeal. State v.
Fields, 5th Dist. Muskingum No. CT2011-0030, 2011-Ohio-5513 (Fields II). Appellant
did not file an appeal with the Supreme Court of Ohio.
{¶3} On July 19, 2011, appellant filed a motion for sentence modification
pursuant to H.B. No. 86 which was denied on July 22, 2011. This decision was affirmed
on appeal. State v. Fields, 5th Dist. Muskingum No. CT2011-0037, 2011-Ohio-6044
(Fields III). Appellant's appeal to the Supreme Court of Ohio was not accepted for
review. State v. Fields, 131 Ohio St.3d 1472, 2012-Ohio-896.
{¶4} On March 5, 2012, appellant filed a motion to withdraw plea which was
denied on April 24, 2012. On May 7, 2012, the trial court resentenced appellant solely
for the purpose of advising him that he was subject to a three year mandatory term of
postrelease control. These decisions were affirmed on appeal. State v. Fields, 5th Dist. Muskingum County, Case No. CT2014-0025 3
Muskingum Nos. CT 12-0028 and CT 12-0030, 2012-Ohio-6086 (Fields IV). Appellant's
appeal to the Supreme Court of Ohio was not accepted for review. State v. Fields, 134
Ohio St.3d 1509, 2013-Ohio-1123.
{¶5} On February 6, 2013, appellant filed a motion for sentencing pursuant to
Crim.R. 32(B); Crim.R. 32(C); R.C. 2505.02; and a revised judgment of conviction and
sentence which was denied on May 17, 2013. This decision was affirmed on appeal.
State v. Fields, 5th Dist. Muskingum No. CT2013-0027, 2013-Ohio-5288 (Fields V).
Appellant's appeal to the Supreme Court of Ohio was not accepted for review. State v.
Fields, 138 Ohio St.3d 1468, 2014-Ohio-1674.
{¶6} On August 26, 2013, appellant filed a motion for allied offense
determination which was denied on April 7, 2014.
{¶7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶8} "WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
'RESENTENCING PROCEEDINGS' BY NOT COMPLYING WITH REQUIREMENTS
OF: O.R.C. § 2929.191, AND NOT ISSUING AND RECORDING A CORRECTION OF
THE FORMER JUDGMENT OF CONVICTION 'NUNC PRO TUNC'."
II
{¶9} "WHETHER FIFTH AMENDMENT "DOUBLE JEOPARDY
PROTECTIONS" ARE SUBJECT TO 'WAIVER' BY NON-COMPLIANCE OF THE
TRIAL COURT TO ISSUED UPON REQUIRED 'ALLIED OFFENSE DETERMINATION
PROCEDURES,' AND WHETHER THE CONFLICTED STATUTES [O.R.C. § Muskingum County, Case No. CT2014-0025 4
2941.25(A)] AND [O.R.C. § 2929.19(B)(1)] CREATE AN IRRECONCILABLE
CONSTITUTIONAL IMPERATIVE AS A MATTER OF LAW REQUIRING THE LATTER
TO BE STRUCK DOWN AS UNCONSTITUTIONAL."
{¶10} Appellant claims the trial court erred in resentencing him. We disagree.
{¶11} Appellant argues in his brief at 5-6 that the trial court "did not prepare and
issue a correction to the judgment of conviction, and it did not place 'upon the journal of
the court an entry nunc pro tunc to record the correction of the judgment of conviction,'
as required in unmistakable mandatory language by: O.R.C. § 2929.191(A)(2)."
Appellant also argues in his brief at 6 that "there is no final appealable order" because
of "multiple entries."
{¶12} The May 7, 2012 resentencing was reviewed and affirmed on appeal in
both Fields IV and V.
{¶13} In Fields IV, appellant argued he should have been afforded a de novo
hearing on resentencing. This court disagreed, finding at ¶ 22, "appellant is subject to
Fischer [State v., 128 Ohio St.3d 92, 2010-Ohio-6238] and the trial court did not err in
resentencing him for the limited purpose of correctly advising him of the mandatory 3-
year term of postrelease control."
{¶14} In Fields V, appellant argued multiple entries did not create a finable
appealable order. This court disagreed, finding at ¶ 22 that the sentencing entry
resulting from the May 7, 2012 resentencing was "a valid, final appealable order in this
case," and once again noting the May 7, 2012 resentencing hearing was, "correctly
limited to the proper imposition of post release control." Muskingum County, Case No. CT2014-0025 5
{¶15} We find appellant's arguments herein are barred under the law of the case
doctrine:
Briefly, the doctrine provides that the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for
all subsequent proceedings in the case at both the trial and reviewing
levels.
The doctrine is considered to be a rule of practice rather than a
binding rule of substantive law and will not be applied so as to achieve
unjust results. However, the rule is necessary to ensure consistency of
results in a case, to avoid endless litigation by settling the issues, and to
preserve the structure of superior and inferior courts as designed by the
Ohio Constitution. (Citations omitted.)
Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).
{¶16} Assignment of Error I is denied.
{¶17} Appellant claims he was subject to double jeopardy because the trial court
erred in failing to make a determination on allied offenses. We disagree.
{¶18} This issue was reviewed in Fields I under Assignment of Error V and
denied. Nolan, supra. Muskingum County, Case No. CT2014-0025 6
{¶19} Furthermore, appellant's conviction and sentence were final on December
15, 2010 (Fields I). Any argument relative to allied offenses pursuant to State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, decided December 29, 2010, is
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[Cite as State v. Fields, 2014-Ohio-5233.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : GERALD D. FIELDS : Case No. CT2014-0025 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR2009-0166
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 24, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT L. SMITH GERALD D. FIELDS, PRO SE 27 North Fifth Street #617-709 Zanesville, OH 43701 F.M.C. P.O. Box 23658 1800 Harmon Avenue Columbus, OH 43223 Muskingum County, Case No. CT2014-0025 2
Farmer, J.
{¶1} On October 13, 2009, appellant, Gerald Fields, pled guilty to one count of
trafficking in drugs in violation of R.C. 2925.03 and one count of permitting drug abuse
in violation of R.C. 2925.13. By journal entry filed November 9, 2009, the trial court
sentenced appellant to an aggregate term of nine years in prison. Appellant's case was
affirmed on appeal. State v. Fields, 5th Dist. Muskingum No. CT2009-0057, 2010-Ohio-
6233 (Fields I). Appellant's appeal to the Supreme Court of Ohio was not accepted for
review. State v. Fields, 128 Ohio St.3d 1459, 2011-Ohio-1829.
{¶2} On April 19, 2011, appellant filed a motion for postconviction relief which
was denied on April 21, 2011. On June 21, 2011, appellant filed a motion to vacate or
set aside conviction or sentence and a motion to amend same on June 23, 2011 which
were denied on June 29, 2011. These decisions were affirmed on appeal. State v.
Fields, 5th Dist. Muskingum No. CT2011-0030, 2011-Ohio-5513 (Fields II). Appellant
did not file an appeal with the Supreme Court of Ohio.
{¶3} On July 19, 2011, appellant filed a motion for sentence modification
pursuant to H.B. No. 86 which was denied on July 22, 2011. This decision was affirmed
on appeal. State v. Fields, 5th Dist. Muskingum No. CT2011-0037, 2011-Ohio-6044
(Fields III). Appellant's appeal to the Supreme Court of Ohio was not accepted for
review. State v. Fields, 131 Ohio St.3d 1472, 2012-Ohio-896.
{¶4} On March 5, 2012, appellant filed a motion to withdraw plea which was
denied on April 24, 2012. On May 7, 2012, the trial court resentenced appellant solely
for the purpose of advising him that he was subject to a three year mandatory term of
postrelease control. These decisions were affirmed on appeal. State v. Fields, 5th Dist. Muskingum County, Case No. CT2014-0025 3
Muskingum Nos. CT 12-0028 and CT 12-0030, 2012-Ohio-6086 (Fields IV). Appellant's
appeal to the Supreme Court of Ohio was not accepted for review. State v. Fields, 134
Ohio St.3d 1509, 2013-Ohio-1123.
{¶5} On February 6, 2013, appellant filed a motion for sentencing pursuant to
Crim.R. 32(B); Crim.R. 32(C); R.C. 2505.02; and a revised judgment of conviction and
sentence which was denied on May 17, 2013. This decision was affirmed on appeal.
State v. Fields, 5th Dist. Muskingum No. CT2013-0027, 2013-Ohio-5288 (Fields V).
Appellant's appeal to the Supreme Court of Ohio was not accepted for review. State v.
Fields, 138 Ohio St.3d 1468, 2014-Ohio-1674.
{¶6} On August 26, 2013, appellant filed a motion for allied offense
determination which was denied on April 7, 2014.
{¶7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶8} "WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN
'RESENTENCING PROCEEDINGS' BY NOT COMPLYING WITH REQUIREMENTS
OF: O.R.C. § 2929.191, AND NOT ISSUING AND RECORDING A CORRECTION OF
THE FORMER JUDGMENT OF CONVICTION 'NUNC PRO TUNC'."
II
{¶9} "WHETHER FIFTH AMENDMENT "DOUBLE JEOPARDY
PROTECTIONS" ARE SUBJECT TO 'WAIVER' BY NON-COMPLIANCE OF THE
TRIAL COURT TO ISSUED UPON REQUIRED 'ALLIED OFFENSE DETERMINATION
PROCEDURES,' AND WHETHER THE CONFLICTED STATUTES [O.R.C. § Muskingum County, Case No. CT2014-0025 4
2941.25(A)] AND [O.R.C. § 2929.19(B)(1)] CREATE AN IRRECONCILABLE
CONSTITUTIONAL IMPERATIVE AS A MATTER OF LAW REQUIRING THE LATTER
TO BE STRUCK DOWN AS UNCONSTITUTIONAL."
{¶10} Appellant claims the trial court erred in resentencing him. We disagree.
{¶11} Appellant argues in his brief at 5-6 that the trial court "did not prepare and
issue a correction to the judgment of conviction, and it did not place 'upon the journal of
the court an entry nunc pro tunc to record the correction of the judgment of conviction,'
as required in unmistakable mandatory language by: O.R.C. § 2929.191(A)(2)."
Appellant also argues in his brief at 6 that "there is no final appealable order" because
of "multiple entries."
{¶12} The May 7, 2012 resentencing was reviewed and affirmed on appeal in
both Fields IV and V.
{¶13} In Fields IV, appellant argued he should have been afforded a de novo
hearing on resentencing. This court disagreed, finding at ¶ 22, "appellant is subject to
Fischer [State v., 128 Ohio St.3d 92, 2010-Ohio-6238] and the trial court did not err in
resentencing him for the limited purpose of correctly advising him of the mandatory 3-
year term of postrelease control."
{¶14} In Fields V, appellant argued multiple entries did not create a finable
appealable order. This court disagreed, finding at ¶ 22 that the sentencing entry
resulting from the May 7, 2012 resentencing was "a valid, final appealable order in this
case," and once again noting the May 7, 2012 resentencing hearing was, "correctly
limited to the proper imposition of post release control." Muskingum County, Case No. CT2014-0025 5
{¶15} We find appellant's arguments herein are barred under the law of the case
doctrine:
Briefly, the doctrine provides that the decision of a reviewing court
in a case remains the law of that case on the legal questions involved for
all subsequent proceedings in the case at both the trial and reviewing
levels.
The doctrine is considered to be a rule of practice rather than a
binding rule of substantive law and will not be applied so as to achieve
unjust results. However, the rule is necessary to ensure consistency of
results in a case, to avoid endless litigation by settling the issues, and to
preserve the structure of superior and inferior courts as designed by the
Ohio Constitution. (Citations omitted.)
Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).
{¶16} Assignment of Error I is denied.
{¶17} Appellant claims he was subject to double jeopardy because the trial court
erred in failing to make a determination on allied offenses. We disagree.
{¶18} This issue was reviewed in Fields I under Assignment of Error V and
denied. Nolan, supra. Muskingum County, Case No. CT2014-0025 6
{¶19} Furthermore, appellant's conviction and sentence were final on December
15, 2010 (Fields I). Any argument relative to allied offenses pursuant to State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, decided December 29, 2010, is
misplaced as explained by this court in State v. Lumpkin, 5th Dist. Licking No. 12-CA-
83, 2013-Ohio-3105, ¶ 11:
The Ohio Supreme Court's holding in Johnson, supra, does not
apply retroactively. See, State v. Holliday, 5th Dist. No. 11 CAA110104,
2012-Ohio-2376; State v. Hickman, 5th Dist. 11 CA54, 2012-Ohio-2182
citing State v. Parson, 2nd Dist. 24641, 2012-Ohio-730. A new judicial
ruling may be applied only to cases pending on the announcement date.
State v. Parson, 2nd Dist. No. 24641, 2012-Ohio-730. The new judicial
ruling may not be applied retroactively to a conviction that has become
final, i.e., where the accused has exhausted all of his appellate remedies.
Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592. Accordingly,***his
reliance on Johnson is misplaced as his conviction and sentence were
already final prior to the date the Supreme Court pronounced its holding
therein.
{¶20} Assignment of Error II is denied. Muskingum County, Case No. CT2014-0025 7
{¶21} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
SGF/sg 1112