State v. Nero

2013 Ohio 3610

Opinion

[Cite as State v. Nero, 2013-Ohio-3610.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case Nos. 2013CA00050, PATRICK D. NERO 2013CA00054

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case Nos. 2011-CR-1129, 2011-CR-0566

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 19, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO PATRICK D. NERO, PRO SE PROSECUTING ATTORNEY, Trumbull Correctional Institution STARK COUNTY, OHIO Inmate No. 621-612 P.O. Box 901 By: RONALD MARK CALDWELL Leavittsburg, Ohio 44430 Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case Nos. 2013CA00050, 2013CA00054 2

Hoffman, P.J.

{¶1} Defendant-appellant Patrick Dwayne Nero appeals the February 15, 2013

Judgment Entry entered by the Stark County Court of Common Pleas denying his

motion to correct void sentence and for final appealable order. Plaintiff-appellee is the

state of Ohio.

STATEMENT OF THE CASE1

{¶2} Appellant was indicted by the Stark County Grand Jury on one count of

having a weapon under disability and one count of illegal possession of a firearm in a

liquor permit premises. The weapons under disability charge listed seven prior criminal

cases giving rise to ten convictions, eight felonies and two misdemeanors, which

created the disability element for the offense.

{¶3} Following a jury trial, Appellant was convicted as charged in the indictment

and sentenced to an aggregate term of incarceration of three years imposed

consecutive to a three-year prison term in a separate criminal case. The trial court

memorialized the conviction and sentence via Judgment Entry of December 23, 2011.

In a subsequent Judgment Entry, the trial court accorded Appellant 155 days of jail-time

credit. On October 15, 2012, this Court affirmed Appellant's convictions and sentence

on direct appeal in State v. Nero, Stark App. No. 2012-CA-00016, 2012-Ohio-4810.

{¶4} On February 12, 2013, Appellant filed a motion to correct void sentence

and for final appealable order arguing his original sentencing entry did not include jail

time credit; thus, the sentencing entry was void. Appellant moved the trial court for

resentencing in order to include the jail time credit.

1 A rendition of the underlying facts is unnecessary for our resolution of this appeal. Stark County, Case Nos. 2013CA00050, 2013CA00054 3

{¶5} The trial court denied the motion via Judgment Entry of February 15,

2013.

{¶6} Appellant now appeals, assigning as error:

{¶7} “I. TRIAL COURT ERRED WHEN IT FAILED TO CALCULATE AND

INCLUDE THE SPECIFIC NUMBER OF DAYS APPELLANT WAS TO RECEIVE FOR

JAIL TIME CREDIT IN HIS SENTENCING JUDGMENT ENTRY. THIS MAKES

APPELLANT’S SENTENCE VOID AND THE JUDGMENT ENTRY A NON-FINAL

APPEALABLE ORDER PURSUANT TO STATE V. BAKER, 119 OHIO ST.3d 197.

THIS MAY ALSO BE CONSIDERED PLAIN ERROR.”

I.

{¶8} As set forth in the Statement of the Case, supra, the trial court's December

23, 2011 Judgment entry indicates Appellant is “entitled to jail time credit which will be

calculated by the Sheriff and the number of days inserted in a certified copy of an order

which shall be forwarded to the institution at a later date." Via separate Judgment Entry

of January 11, 2012, the trial court accorded Appellant jail time credit, indicating the

specific number of days. Appellant does not challenge the calculation of jail time credit

as improper; rather, argues the trial court erred in failing to include the specific

calculation of jail time credit in the original entry.

{¶9} We find Appellant's sentence is not contrary to law. Further, Appellant did

not challenge either the calculation or the facts upon which the calculation was based

on direct appeal. We find the issue raised herein was capable of being raised on direct

appeal to this Court. (See, State v. Nero, Stark App. No. 2012-CA-00016, 2012-Ohio- Stark County, Case Nos. 2013CA00050, 2013CA00054 4

4810.) Accordingly, we find Appellant's argument is barred by the doctrine of res

judicata.

{¶10} The February 15, 2013 Judgment Entry entered by the Stark County Court

of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur

___________________________________ HON. WILLIAM B. HOFFMAN

___________________________________ HON. JOHN W. WISE

___________________________________ HON. CRAIG R. BALDWIN Stark County, Case Nos. 2013CA00050, 2013CA00054 5

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

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : PATRICK D. NERO : : Defendant-Appellant : Case No. 2013CA00050

For the reason stated in our accompanying Opinion, the February 15, 2013

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

to Appellant.

___________________________________ HON. CRAIG R. BALDWIN IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : PATRICK D. NERO : : Defendant-Appellant : Case No. 2013CA00054

For the reason stated in our accompanying Opinion, the February 15, 2013

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

___________________________________ HON. CRAIG R. BALDWIN