[Cite as State v. Like, 2023-Ohio-2970.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29731 : v. : Trial Court Case No. 2006 CR 01531 : ROBERT G. LIKE : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on August 25, 2023
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
ROBERT G. LIKE, Appellant, Pro Se
.............
TUCKER, J.
{¶ 1} Defendant-appellant Robert G. Like appeals from a judgment of the
Montgomery County Court of Common Pleas. The judgment denied Like’s motion for
appointed counsel, which the court treated as a motion for postconviction relief. For the
reasons set forth below, we affirm. -2-
I. Facts and Procedural History
{¶ 2} In 2006, Like was indicted for aggravated murder (prior calculation);
aggravated murder (proximate result of aggravated robbery); aggravated robbery (deadly
weapon); two counts of tampering with evidence; aggravated murder (proximate result of
kidnapping); and kidnapping. The aggravated robbery count and the aggravated murder
counts carried three-year firearm specifications. A jury found Like guilty of all counts and
specifications. After merger of some of the offenses, the trial court imposed an aggregate
prison sentence of life plus 21 years.
{¶ 3} Like filed a timely appeal in which he argued that the convictions had not
been supported by sufficient evidence and that the trial court had erred in sentencing.
State v. Like, 2d Dist. Montgomery No. 21991, 2008-Ohio-1873. We concluded that the
State had not presented evidence sufficient to sustain the convictions for kidnapping and
tampering with evidence, and we vacated those convictions. Id. at ¶ 27. Because we
vacated the kidnapping conviction, we necessarily vacated the conviction for aggravated
murder as a proximate result of kidnapping. Id. We further concluded the trial court had
erred in failing to merge all the firearm specifications for purposes of sentencing. Id. at
¶ 41. We therefore reduced Like’s definite sentence by a period of eight years, for an
aggregate prison term of life plus 13 years. Id. at ¶ 43.
{¶ 4} In June 2019, Like filed a motion to vacate his sentence in which he asserted
that the sentence was void because it did not provide for parole eligibility. The trial court
overruled the motion, and no appeal was taken. -3-
{¶ 5} In June 2020, Like filed a motion to correct his sentence, which was overruled
by the trial court. Like appealed. We affirmed the trial court’s judgment, stating that
“any allied-offense sentencing error would have rendered Like’s sentence voidable, not
void. Thus, res judicata precluded him from raising an allied-offense issue in post-
conviction proceedings.” State v. Like, 2d Dist. Montgomery No. 28968, 2021-Ohio-
2696, ¶ 14.
{¶ 6} In December 2020, Like filed a motion for jail-time credit. A jail-time credit
report was filed with the trial court; it indicated that Like was entitled to 268 days of credit
which would be automatically credited to him by the Bureau of Sentence Computation.
The report was approved by the trial court on December 23, 2020.
{¶ 7} On August 4, 2022, Like filed a notice of non-compliance in which he argued
that the notice of jail-time credit had constituted a resentencing. He further argued that
the new sentence was void because it did not set forth the facts surrounding his conviction
and did not include any information on sentencing other than the amount of jail time credit
he would receive. The trial court treated the notice as a motion and overruled it.
{¶ 8} On February 2, 2023, Like filed a “motion for appointment of counsel” in
which he again argued that the trial court’s December 23, 2020 entry had constituted a
resentencing and that it was void because it did not re-impose his former sentence. The
trial court overruled the motion on the ground that all the issues raised by Like were barred
by res judicata. The court also stated that appointed counsel is not required for
successive post-conviction relief petitions.
{¶ 9} Like appeals. -4-
II. Analysis
{¶ 10} Like’s sole assignment of error states:
WHERE A FUNDAMENTAL MISCARRIAGE OF JUSTICE OF
CONSTITUTIONAL PROPORTION IS EVIDENT ON THE FACE OF THE
RECORD, AND THE FOURTEENTH AMENDMENT MANDATES THAT A
STATE MAY NOT DEPRIVE ANY PERSON OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS OF LAW, AN INDIGENT
DEFENDANT IS ENTITLED TO APPOINTED COUNSEL WHERE SUCH
PERSON IS FACIALLY DEPRIVED [OF] HIS OR HER LIBERTY WITHOUT
DUE PROCESS OF LAW.
{¶ 11} Like claims the trial court erred by denying his motion for the appointment
of counsel.
{¶ 12} At the outset, we note that when Like filed the February 2023 motion
requesting counsel, the last ruling made by the trial court had been filed on August 22,
2022; in other words, there were no pending motions before the trial court for which
counsel could possibly be required at that time. Therefore, the trial court was entitled to
overrule the motion on that basis alone.
{¶ 13} However, it appears that the trial court treated the motion as a petition for
post-conviction relief. Although Like argues the trial court was not permitted to take such
action, we find no error. “Courts may recast irregular motions into whatever category
necessary to identify and establish the criteria by which the motion should be judged. -5-
Under certain circumstances, it is also appropriate for courts to recast motions that are
unambiguously named and presented under a specific rule when said rule has no
application to the judgment at issue.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251,
¶ 12 (2d Dist.), citing State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 12. Despite the fact that Like’s pleading was styled as a request for counsel, the
only argument raised therein challenged the December 2020 entry granting jail-time
credit, which he claimed constituted a resentencing. As such, the trial court appropriately
considered the motion as a petition for post-conviction relief with an attendant request for
appointed counsel.
{¶ 14} As stated, Like asserts that the December 2020 entry granting his request
for jail-time credit constituted a resentencing and that the resentencing was void because
the entry did not set forth the fact of his conviction or the sentence imposed. We
disagree.
{¶ 15} R.C. 2929.19(B)(2)(g)(iii) governs motions to correct errors in jail-time
credit.1 The statute allows an offender to file a motion to correct an error in determining
jail-time credit “at any time after sentencing” and gives the sentencing court authority to
correct any error in determining jail-time credit that was “not previously raised at
sentencing.” The statute does not state that a jail-time entry constitutes a resentencing.
Instead, as it is written, the statute merely permits the trial court to perform a ministerial
function to address a singular error in sentencing. An entry filed by a trial court under
1 Prior to the enactment of this statute, motions to correct jail-time errors filed outside the time for direct appeal were barred by the doctrine of res judicata. State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, ¶ 11. -6-
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Like, 2023-Ohio-2970.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellee : C.A. No. 29731 : v. : Trial Court Case No. 2006 CR 01531 : ROBERT G. LIKE : (Criminal Appeal from Common Pleas : Court) Appellant : :
...........
OPINION
Rendered on August 25, 2023
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee
ROBERT G. LIKE, Appellant, Pro Se
.............
TUCKER, J.
{¶ 1} Defendant-appellant Robert G. Like appeals from a judgment of the
Montgomery County Court of Common Pleas. The judgment denied Like’s motion for
appointed counsel, which the court treated as a motion for postconviction relief. For the
reasons set forth below, we affirm. -2-
I. Facts and Procedural History
{¶ 2} In 2006, Like was indicted for aggravated murder (prior calculation);
aggravated murder (proximate result of aggravated robbery); aggravated robbery (deadly
weapon); two counts of tampering with evidence; aggravated murder (proximate result of
kidnapping); and kidnapping. The aggravated robbery count and the aggravated murder
counts carried three-year firearm specifications. A jury found Like guilty of all counts and
specifications. After merger of some of the offenses, the trial court imposed an aggregate
prison sentence of life plus 21 years.
{¶ 3} Like filed a timely appeal in which he argued that the convictions had not
been supported by sufficient evidence and that the trial court had erred in sentencing.
State v. Like, 2d Dist. Montgomery No. 21991, 2008-Ohio-1873. We concluded that the
State had not presented evidence sufficient to sustain the convictions for kidnapping and
tampering with evidence, and we vacated those convictions. Id. at ¶ 27. Because we
vacated the kidnapping conviction, we necessarily vacated the conviction for aggravated
murder as a proximate result of kidnapping. Id. We further concluded the trial court had
erred in failing to merge all the firearm specifications for purposes of sentencing. Id. at
¶ 41. We therefore reduced Like’s definite sentence by a period of eight years, for an
aggregate prison term of life plus 13 years. Id. at ¶ 43.
{¶ 4} In June 2019, Like filed a motion to vacate his sentence in which he asserted
that the sentence was void because it did not provide for parole eligibility. The trial court
overruled the motion, and no appeal was taken. -3-
{¶ 5} In June 2020, Like filed a motion to correct his sentence, which was overruled
by the trial court. Like appealed. We affirmed the trial court’s judgment, stating that
“any allied-offense sentencing error would have rendered Like’s sentence voidable, not
void. Thus, res judicata precluded him from raising an allied-offense issue in post-
conviction proceedings.” State v. Like, 2d Dist. Montgomery No. 28968, 2021-Ohio-
2696, ¶ 14.
{¶ 6} In December 2020, Like filed a motion for jail-time credit. A jail-time credit
report was filed with the trial court; it indicated that Like was entitled to 268 days of credit
which would be automatically credited to him by the Bureau of Sentence Computation.
The report was approved by the trial court on December 23, 2020.
{¶ 7} On August 4, 2022, Like filed a notice of non-compliance in which he argued
that the notice of jail-time credit had constituted a resentencing. He further argued that
the new sentence was void because it did not set forth the facts surrounding his conviction
and did not include any information on sentencing other than the amount of jail time credit
he would receive. The trial court treated the notice as a motion and overruled it.
{¶ 8} On February 2, 2023, Like filed a “motion for appointment of counsel” in
which he again argued that the trial court’s December 23, 2020 entry had constituted a
resentencing and that it was void because it did not re-impose his former sentence. The
trial court overruled the motion on the ground that all the issues raised by Like were barred
by res judicata. The court also stated that appointed counsel is not required for
successive post-conviction relief petitions.
{¶ 9} Like appeals. -4-
II. Analysis
{¶ 10} Like’s sole assignment of error states:
WHERE A FUNDAMENTAL MISCARRIAGE OF JUSTICE OF
CONSTITUTIONAL PROPORTION IS EVIDENT ON THE FACE OF THE
RECORD, AND THE FOURTEENTH AMENDMENT MANDATES THAT A
STATE MAY NOT DEPRIVE ANY PERSON OF LIFE, LIBERTY OR
PROPERTY WITHOUT DUE PROCESS OF LAW, AN INDIGENT
DEFENDANT IS ENTITLED TO APPOINTED COUNSEL WHERE SUCH
PERSON IS FACIALLY DEPRIVED [OF] HIS OR HER LIBERTY WITHOUT
DUE PROCESS OF LAW.
{¶ 11} Like claims the trial court erred by denying his motion for the appointment
of counsel.
{¶ 12} At the outset, we note that when Like filed the February 2023 motion
requesting counsel, the last ruling made by the trial court had been filed on August 22,
2022; in other words, there were no pending motions before the trial court for which
counsel could possibly be required at that time. Therefore, the trial court was entitled to
overrule the motion on that basis alone.
{¶ 13} However, it appears that the trial court treated the motion as a petition for
post-conviction relief. Although Like argues the trial court was not permitted to take such
action, we find no error. “Courts may recast irregular motions into whatever category
necessary to identify and establish the criteria by which the motion should be judged. -5-
Under certain circumstances, it is also appropriate for courts to recast motions that are
unambiguously named and presented under a specific rule when said rule has no
application to the judgment at issue.” State v. Clark, 2017-Ohio-120, 80 N.E.3d 1251,
¶ 12 (2d Dist.), citing State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d
431, ¶ 12. Despite the fact that Like’s pleading was styled as a request for counsel, the
only argument raised therein challenged the December 2020 entry granting jail-time
credit, which he claimed constituted a resentencing. As such, the trial court appropriately
considered the motion as a petition for post-conviction relief with an attendant request for
appointed counsel.
{¶ 14} As stated, Like asserts that the December 2020 entry granting his request
for jail-time credit constituted a resentencing and that the resentencing was void because
the entry did not set forth the fact of his conviction or the sentence imposed. We
disagree.
{¶ 15} R.C. 2929.19(B)(2)(g)(iii) governs motions to correct errors in jail-time
credit.1 The statute allows an offender to file a motion to correct an error in determining
jail-time credit “at any time after sentencing” and gives the sentencing court authority to
correct any error in determining jail-time credit that was “not previously raised at
sentencing.” The statute does not state that a jail-time entry constitutes a resentencing.
Instead, as it is written, the statute merely permits the trial court to perform a ministerial
function to address a singular error in sentencing. An entry filed by a trial court under
1 Prior to the enactment of this statute, motions to correct jail-time errors filed outside the time for direct appeal were barred by the doctrine of res judicata. State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, 59 N.E.3d 1264, ¶ 11. -6-
the terms of this statute is akin to a nunc pro tunc order and, as such, it does not give rise
to a new final order for purposes of appeal. See State v. Lentz, 2d Dist. Miami No. 2022-
CA-10, 2022-Ohio-4737, ¶ 7.
{¶ 16} Importantly, even if the jail-time credit entry had constituted a resentencing,
any error therein would have rendered the sentence voidable rather than void, and thus
could be challenged only on direct appeal. The jail-time credit entry was filed in
December 2020, and Like did not appeal. Like cannot now challenge any error related
to that order, as such arguments would be barred by res judicata. See State v. Like, 2d
Dist. Montgomery No. 28968, 2021-Ohio-2696, ¶ 13.
{¶ 17} Because we conclude that Like cannot challenge the jail-time credit entry
under the circumstances of this case, we find that the trial court did not err in denying his
motion for appointment of counsel. Accordingly, the assignment of error is overruled.
III. Conclusion
{¶ 18} The judgment of the trial court is affirmed.
LEWIS, J. and HUFFMAN, J., concur.