State v. Monk

2014 Ohio 2486

• Court: Ohio Court of Appeals
• Decided: June 6, 2014
• Docket: 14 CA 1
• Status: Published

Opinion

[Cite as State v. Monk, 2014-Ohio-2486.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. John W. Wise, J. : -vs- : : Case No. 14 CA 1 DANIEL L. MONK : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 10 CR 526

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 6, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KENNETH W. OSWALT DANIEL L. MONK, PRO SE LICKING COUNTY PROSECUTOR Post Office Box 5500 20 South Second Street, Fourth Floor Chillicothe, Ohio 45601 Newark, Ohio 43055 [Cite as State v. Monk, 2014-Ohio-2486.]

Wise, J.

{¶1} Defendant-Appellant Daniel L. Monk appeals the December 18, 2013,

decision of the Licking County Common Pleas Court denying his Motion to Correct

Sentence.

{¶2} Plaintiff-Appellee is the State of Ohio.

{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

{¶4} “(E) Determination and judgment on appeal. The appeal will be

determined as provided by App. R.11.1. It shall be sufficient compliance with App.R.

12(A) for the statement of the reason for the court’s decision as to each error to be in

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form.”

{¶5} This appeal shall be considered in accordance with the aforementioned

rule.

STATEMENT OF THE CASE AND FACTS

{¶6} Appellant was indicted on two counts of sexual battery and one count of

contributing to the delinquency of a minor.

{¶7} On November 8, 2010, Appellant entered an initial plea of not guilty by

reason of insanity. The trial court ordered a competency evaluation, and a hearing was

scheduled for December 14, 2010. At Appellant's request, the hearing was then

continued to January 3, 2011. Licking County, Case No. 14 CA 1 3

{¶8} On January 3, 2011, Appellant moved the trial court to continue the trial

set for January 5, 2011. Appellant also filed a motion to suppress on the same date.

The trial court denied the motions.

{¶9} On January 4, 2011, Appellant retained new counsel.

{¶10} On January 5, 2011, the date scheduled for trial, Appellant's new trial

counsel moved the trial court to continue the jury trial. The trial court denied the motion.

Appellant then entered a plea of no contest to the charges.

{¶11} On February 16, 2011, the trial court sentenced Appellant to three years

incarceration on each count of sexual battery to run consecutively with a six month term

on the one count of contributing to the delinquency of a minor charge, for an aggregate

prison term of six years.

{¶12} Appellant appealed his sentence and conviction to this Court which, by

Opinion filed November 4, 2011, affirmed. See State v. Monk, 5th Dist. Licking App. No.

11-CA-28, 2011-Ohio-5751.

{¶13} On July 23, 2013, Appellant filed a Motion to Correct Sentence.

{¶14} On August 6, 2013, the State filed its response in opposition, arguing (a)

that the issues raised regarding merger and consecutive sentencing were barred by the

doctrine of res judicata; (b) that the motion was in fact an untimely petition for post-

conviction relief under R.C. 2953.21; and (c) the motion was substantively deficient.

{¶15} On December 18, 2013, the trial court denied Appellant’s motion, stating

that it did so “[f]or the reasons set out in the state’s response…”

{¶16} Appellant now appeals, assigning the following error for review: Licking County, Case No. 14 CA 1 4

ASSIGNMENTS OF ERROR

{¶17} “I. WHETHER THE TRIAL COURT COMMITTED PREJUDICAL ERROR

IN FAILING TO ABIDE BY THE SENTENCING PROVISIONS AS LEGISLATIVELY

PROMULGATED.

{¶18} “II. WHETHER APPELLANT WAS DEPRIVED OF EFFECTIVE

ASSISTANCE OF COUNSEL.”

I.

{¶19} In Appellant’s First Assignment of Error, Appellant argues that the trial

court erred in sentencing. We disagree.

{¶20} Specifically, Appellant challenges the trial court's failure to merge alleged

allied offenses.

{¶21} As stated above, Appellant filed a direct appeal from the imposition of his

sentence, which was affirmed by this Court in November, 2011. Then, on July 23, 2013,

some 29 months after his sentence was imposed, he filed a pro se “Motion to Correct

Sentence” and memorandum in support. Appellant essentially argued that he should not

have received consecutive sentences, and that his convictions should have merged.

{¶22} Upon our review, we find Appellant's motion to correct his sentence should

be construed as a petition for post-conviction relief and dismissed on the basis of res

judicata, because Appellant could have raised his claims on direct appeal. As stated by

the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104

(1967), paragraphs eight and nine of the syllabus:

{¶23} Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant from raising and litigating in any proceeding, except an appeal from Licking County, Case No. 14 CA 1 5

that judgment, any defense or claimed lack of due process that was raised or could

have been raised by the defendant at the trial which resulted in that judgment of

conviction or on an appeal from that judgment.

{¶24} Based on the foregoing, we find that the trial court did not err by denying

Appellant's motion to correct sentence. Accordingly, we find Appellant’s First

Assignment of Error not well-taken and overrule same.

II.

{¶25} In Appellant’s Second Assignment of Error, Appellant argues that he was

denied the effective assistance of counsel.

{¶26} In this assignment of error, Appellant seems to be arguing that he was

denied the effective assistance of counsel at both the trial court level and the appellate

level.

{¶27} With regard to any argument that his trial court counsel was ineffective, we

find that this argument is barred by the doctrine of res judicata. Appellant did in fact

raise this issue in his direct appeal from his sentence, and this Court found said

argument not well-taken,

{¶28} As to Appellant’s argument that his appellate counsel was ineffective, we

find said issue is not properly before this Court. “Claims regarding ineffective assistance

of appellate counsel are not cognizable in post-conviction proceedings brought pursuant

to R.C. 2953.21.” State v. Love, 11th Dist. No. 2007–L–030, 2007–Ohio–6256, ¶ 18,

citing Morgan v. Eads, 104 Ohio St.3d 142, 2004–Ohio–6110, 818 N.E.2d 1157, ¶ 6.

Such claims must be raised in an application for reopening filed pursuant to App.R. Licking County, Case No. 14 CA 1 6

26(B). Morgan at ¶ 7. Appellant cannot raise claims related to the ineffectiveness of his

appellate counsel in these proceedings.

{¶29} Appellant’s Second Assignment of Error is overruled.

{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas of

Licking County, Ohio, is affirmed.

By: Wise, J.,

Gwin, P.J., and

Farmer, J., concur

JWW/d 0529 [Cite as State v. Monk, 2014-Ohio-2486.]