State v. Flugga

2011 Ohio 3807

Opinion

[Cite as State v. Flugga , 2011-Ohio-3807.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. Patricia A. Delaney, J. -vs- Case No. 11-CA-25 COREY FLUGGA

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Case No. 08 CR 00448

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 28, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT COREY FLUGGA, PRO SE LICKING COUNTY PROSECUTOR Institutional Number 596-828 P.O. Box 7010 BY: DANIEL H. HUSTON Chillicothe, Ohio 45601 Assistant Prosecutor 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 11-CA-25 2

Hoffman, P.J.

{¶1} Defendant-appellant Corey Flugga appeals the February 14, 2011

Judgment Entry entered by the Licking County Court of Common Pleas which denied

his Motion for De Novo Sentencing. The State of Ohio is plaintiff-appelle.

STATEMENT OF THE CASE1

{¶2} Appellant was convicted of two counts of murder in 2009. Appellant

appealed to this Court and we affirmed his convictions in State v. Flugga (October 19,

2009), Licking County Appeal No. 2009-CA-5, 2009-Ohio-5648.

{¶3} On September 23, 2009, Appellant filed a petition for post-conviction relief.

The trial court denied Appellant’s petition. Appellant also appealed that decision to this

Court and we affirmed the trial court’s decision in State v. Flugga (September 7, 2010),

Licking County App. No. 09-CA-140, 2010-Ohio-4237.

{¶4} Thereafter, Appellant filed a Motion for De Novo Sentencing on October

20, 2010, arguing his sentence needed to be corrected to reflect his two convictions for

murder should have been merged. The trial court denied his motion via Judgment Entry

filed February 14, 2011. It is from that judgment entry Appellant prosecutes this appeal,

assigning as error:

{¶5} “I. WHETHER THE TRIAL COURT ERRED IN DENYING THE

APPELLANTS MOTION FOR DE NOVO SENTENCING BASED ON THAT IT LACKED

JURISDICTION.

{¶6} “II. WHETHER THE TRIAL COURT ERRED IN DENYING THE

APPELLANTS MOTION BASED ON RES JUDICATA.”

1 A rendition of the facts is unnecessary for our resolution of this Appeal. Licking County, Case No. 11-CA-25 3

II

{¶7} We address this assignment of error first as we find it dispositive of this

Appeal pursuant to the two-issue rule.

{¶8} We find the trial court correctly determined Appellant’s claim for relief was

barred by the doctrine of res judicata; not just once, but twice. Appellant could have

raised this argument in his first direct appeal but did not. Furthermore, Appellant did

raise this issue on appeal from denial of his prior post-conviction relief petition. This

court specifically found the issue was barred by res judicata then and still is now.

{¶9} Appellant’s attempts to resurrect this issue by merely changing the title on

the motion and asserting his original sentence is void. We find his argument without

merit. The trial court correctly denied Appellant’ motion based upon the doctrine of res

judicata.

{¶10} Appellant’s second assignment of error is overruled.

I

{¶11} Based upon our disposition of Appellant’s second assignment of error,

Appellant’s first assignment of error is moot. Licking County, Case No. 11-CA-25 4

{¶12} The judgment of the trial court is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

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

s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY Licking County, Case No. 11-CA-25 5

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

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : COREY FLUGGA : : Defendant-Appellant : Case No. 11-CA-25

For the reasons set forth in our accompanying Opinion, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs to Appellant.

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

s/ Patricia A. Delaney _________________ HON. PATRICIA A. DELANEY