State v. Driver

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[Cite as State v. Driver, 2011-Ohio-690.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. -vsCase No. 2010CA00133 ARTEMUS DRIVER Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 1999CR0515 JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: February 14, 2011 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO PROSECUTING ATTORNEY, STARK COUNTY, OHIO KENNETH W. FRAME Stark County Public Defender Office 200 West Tuscarawas, Suite 200 Canton, Ohio 44702 BY: RONALD MARK CALDWELL Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2010CA00133 2 Hoffman, J. {¶1} Defendant-appellant Artemus Driver appeals the April 12, 2010 Judgment Entry entered by the Stark County Court of Common Pleas which resentenced him on one count of rape, one count of felonious assault and one count of kidnapping. The State of Ohio is plaintiff-appellee. STATEMENT OF THE CASE1 {¶2} Appellant was found guilty of the aforementioned charges following a trial by jury. The trial court entered convictions of the charges and sentenced Appellant via Judgment Entry journalized August 26, 1999. {¶3} Appellant filed a direct appeal from the August 26, 1999 Judgment Entry in this Court. We affirmed the trial court s judgment entry. See State v. Driver (October 23, 2000), Stark App. No. 1999-CA-00290, unreported. {¶4} On April 12, 2010, the trial court resentenced Appellant pursuant to the direction of the Ohio Supreme Court as pronounced in State v. Singleton (2009), 124 Ohio St.3d 173, 2009-Ohio-6434. The new sentence was journalized April 19, 2010. It is from that judgment entry Appellant prosecutes this appeal assigning as error: {¶5} I. THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO ARGUE AND PRESENT EVIDENCE REGARDING APPELLANT S PRIOR BAD ACTS. {¶6} II. THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION, AND THE JURY S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 1 A rendition of the facts is unnecessary for our disposition of this appeal. Stark County, Case No. 2010CA00133 3 I & II {¶7} Because the same rationale for our decision applies to both assignments of error, we was shall address them together. {¶8} The entry under review was generated in accordance with the procedure set forth in Singleton to correct errors or deficiencies involving notification and journalization of post release control sanctions, committed during a defendant s initial sentencing. Appellant s present assignments of error were or could have been raised in his initial direct appeal to this Court. {¶9} This Court has repeatedly held such resentencings do not allow a defendant to challenge anew his conviction(s) as such is barred under the principles of law of the case and/or res judciata. This Court s position has been validated by two recent Ohio Supreme Court decisions: State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio5283; and State v. Fischer, 2010-Ohio-6238. Pursuant to Ketterer and Fischer, Appellant s two assignments of error are overruled. {¶10} The judgment of the Stark County Court of Common Pleas is affirmed. By: Hoffman, J. Gwin, P.J. and Wise, J. concur s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN s/ W. Scott Gwin _____________________ HON. W. SCOTT GWIN s/ John W. Wise______________________ HON. JOHN W. WISE Stark County, Case No. 2010CA00133 4 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsARTEMUS DRIVER Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 2010CA00133 For the reasons stated in our accompanying Opinion, the April 19, 2010 Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to Appellant. s/ William B. Hoffman_________________ HON. WILLIAM B. HOFFMAN s/ W. Scott Gwin_____________________ HON. W. SCOTT GWIN s/ John W. Wise______________________ HON. JOHN W. WISE

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