State v. Muhleka
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[Cite as State v. Muhleka, 2006-Ohio-1603.] IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 21081 vs. : T.C. CASE NO. 02CR1231 LANNY DALE MUHLEKA : (Criminal Appeal from Common Pleas Court) Defendant-Appellant : . . . . . . . . . O P I N I O N Rendered on the 31st day of March, 2006. . . . . . . . . . Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee Lanny Dale Muhleka, #445-989, Hocking Corr. Inst., P.O. Box 59, Nelsonville, Ohio 45765-0059 Defendant-Appellant, Pro Se . . . . . . . . . GRADY, P.J. {¶ 1} On Muhleka, was March 10, convicted 2003, of Defendant-Appellant, gross sexual 2907.05(A)(4), a felony of the third degree. imposition, Lanny R.C. R.C. 2907.05(B). On that same date the court sentenced Muhleka to a term of 2 imprisonment of five years, the maximum term for third degree felonies. R.C. 2929.14(A)(2). Based on the requirements of R.C. 2929.14(C) which then applied, the court justified the maximum sentence on a finding that Muhleka had committed the worst form of the offense. {¶ 2} Muhleka filed a timely notice of appeal to this court from his conviction and sentence. contained five assignments of error. His brief on appeal None of those assigned errors pertained to the sentence the court had imposed. subsequently affirmed Muhleka s conviction and We sentence. State v. Muhleka (April 9, 2004), Montgomery App. No. 19827. {¶ 3} On April 1, 2005, Muhleka filed a motion asking the trial court to vacate his sentence, arguing that a minimum sentence, of one year authorized by R.C. 2929.14(A)(3) should have been imposed instead of the maximum five year sentence. The court overruled Muhleka s motion on April 26, 2005. The court found that the maximum sentence was authorized by the finding the court had made, and that, in any event, Muhleka s claim is barred by res judicata. The matter is now before us on Muhleka s appeal from the trial court s order. {¶ 4} We agree with the trial court. Muhleka could have challenged his sentence in his prior appeal, but did not. Therefore, under the doctrine of res judicata, our final 3 judgment in the prior appeal bars Muhleka from raising or litigating any claimed defense or lack of due process in any subsequent proceeding. State v. Perry (1967), 10 Ohio St.2d 175. {¶ 5} Further, as the trial court found, Muhleka s maximum five year sentence was authorized by R.C. 2929.14(C) upon the trial court s finding that Muhleka had committed the worst form of the offense. Muhleka did not challenge that finding. {¶ 6} Finally, Muhleka relies on Civ.R. 60(B), arguing that the sentence. trial court s mistake justifies vacating his However, Muhleka s conviction and sentence arose out of a criminal proceeding, in which Civ.R. 60(B) has no application. Relief is instead available in a motion for post-conviction relief filed pursuant to R.C. 2953.21, but not when the claim involved is barred by res judicata. {¶ 7} The assignment of error is overruled. of the trial court will be affirmed. WOLFF, J. And DONOVAN, J., concur. Copies mailed to: Carley J. Ingram, Esq. Lanny Dale Muhleka Hon. Barbara P. Gorman Perry. The judgment
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