State v. Martin

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[Cite as State v. Martin, 2006-Ohio-3137.] COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P.J. Hon. Sheila G. Farmer, J. Hon. John F. Boggins, J. -vsCase No. CT2006-0002 MICHAEL F. MARTIN, III. OPINION Defendant-Appellant CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2002-0191 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: June 15, 2006 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant D. MICHAEL HADDOX/ ROBERT L. SMITH Muskingum County Prosecutors Office 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 MICHAEL MARTIN, III/PRO SE #445-602 Noble Correctional Institution 15708 McConnelsville Road Caldwell, Ohio 43724 Muskingum County, Case No. CT2006-0002 2 Hoffman, P.J. {¶1} Defendant-appellant Michael Martin, III appeals the denial of his Motion to Modify or Reduce Sentence by the Muskingum County Court of Common Pleas. The State of Ohio is plaintiff-appellee. STATEMENT OF THE CASE1 {¶2} On January 13, 2003, appellant plead guilty to one count of Reckless Homicide with a gun specification; one count of Involuntary Manslaughter with a gun specification; and Discharging a Firearm Over a Public Highway. Via Judgment Entry filed February 28, 2003, the trial court sentenced appellant to a total prison term of seven years. {¶3} Appellant filed a Motion for Delayed Appeal on December 22, 2003. This Court denied that motion. Appellant subsequently filed a Motion to Modify or Reduce Sentence on July 29, 2005, which the trial court denied via Judgment Entry filed December 13, 2005. It is from that Judgment Entry appellant prosecutes this appeal. {¶4} Appellant s brief does not contain a statement of the assignments of error presented for review as required by App.R. 16 (A)(3). Upon review of the brief, appellant s argument is based on the United State s Supreme Court s decision in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 as reaffirmed in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738. Appellant s reliance on Blakely and Booker is misplaced as these decisions apply only to cases on direct review. Because the instant appeal does not come to us on direct appeal from the original sentence, we reject appellant s argument. Neither Blakely nor Booker apply 1 A rendition of the facts is unnecessary for our resolution of this appeal. Muskingum County, Case No. CT2006-0002 retroactively. 3 State v. Cates (May 30, 2006), Fairfield App. No. 2005-CA-0097, unreported, and State v. Stillman (Nov. 16, 2005), Fairfield App. No. 2005-CA-55, unreported, 2005-CA-6299. {¶5} The judgment of the Muskingum County Court of Common Pleas is affirmed. By: Hoffman, P.J. Farmer, J. and Boggins, J. concur ___________________________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. SHEILA G. FARMER ___________________________________ HON. JOHN F. BOGGINS Muskingum County, Case No. CT2006-0002 4 IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vs- MICHAEL F. MARTIN, III. Defendant-Appellant : : : : : : : : : : JUDGMENT ENTRY Case No. CT2006-0002 For the reason stated in our accompanying Memorandum-Opinion, the December 13, 2005 Judgment Entry of the Muskingum County Court of Common Pleas is affirmed. Costs assessed to appellant. ___________________________________ HON. WILLIAM B. HOFFMAN ___________________________________ HON. SHEILA G. FARMER ___________________________________ HON. JOHN F. BOGGINS

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