[Cite as State v. Wilson, 2012-Ohio-1660.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24461, 24496
24501
vs. : T.C. CASE NO. 07CR2134
ANTHONY L. WILSON : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 13th day of April, 2012.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
George A. Katchmer, Atty. Reg. No. 0005031, 108 Dayton Street,
Yellow Springs, OH 45387
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} This matter is before the court on three appeals filed
by Defendant, Anthony Wilson, which have been consolidated.
{¶ 2} Defendant was convicted in 2007 following a jury trial
of complicity to commit felonious assault, with a firearm
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specification. The trial court sentenced Defendant to seven years
in prison. We affirmed Defendant’s conviction and sentence on
direct appeal. State v. Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525.
{¶ 3} On March 30, 2010, Defendant filed a motion for leave
to file an untimely motion for a new trial based upon newly
discovered evidence. Defendant claimed that while in prison he
discovered a new witness, Brian Davis, who would present
exculpatory testimony. The trial court overruled Defendant’s
motion on a finding Defendant failed to meet his burden under
Crim.R. 33 to demonstrate that he was unavoidably prevented from
timely discovering the testimony of Brian Davis. Defendant timely
appealed the trial court’s decision, which gives rise to Case No.
CA24496.
{¶ 4} On December 17, 2010, Defendant filed a motion asking
the trial court to stay collection of the court costs until after
Defendant’s release from prison. The trial court denied
Defendant’s motion and Defendant timely appealed, giving rise to
Case No. CA24461.
{¶ 5} On February 23, 2011, Defendant was brought back before
the trial court for resentencing pursuant to R.C. 2929.191, in
order to correct a defect in the imposition of postrelease control.
Defendant objected to the limited scope of the resentencing
hearing and requested a new de novo resentencing hearing. The
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trial court denied Defendant’s request. On that same date, the
court filed an amended judgment of conviction which imposed a term
of postrelease control, nunc pro tunc to the 2007 judgment of
conviction, and also stated that the manner of Defendant’s
conviction was a jury verdict. Defendant timely appealed, giving
rise to Case No. CA24501.
FIRST ASSIGNMENT OF ERROR
{¶ 6} “A TERMINATION ENTRY THAT DOES NOT COMPLY WITH R.C.
2505.02 IS NOT A FINAL APPEALABLE ORDER.”
{¶ 7} Defendant argues that because his original 2007 Judgment
Entry of Conviction (Termination Entry) did not set forth the manner
of his conviction, by jury verdict, it is void and does not
constitute a final appealable order per State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and therefore he is
entitled to a new direct appeal.
{¶ 8} Crim.R. 33(C) provides, in pertinent part: “A judgment
of conviction shall set forth the plea, the verdict, or findings,
upon which each conviction is based, and the sentence.” Baker
held that a judgment of conviction which does not set forth the
manner of the conviction, by plea, verdict, or findings, fails
to comply with Crim.R. 32(C), and therefore is not a final order
for purposes of R.C. 2505.02.
{¶ 9} On October 13, 2011, subsequent to the filing of
Defendant’s brief on appeal, the Supreme Court decided State v.
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Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. Lester
modified Baker and held that a judgment of conviction need not
state the manner of conviction, a plea or a verdict, in order to
be a final order for purposes of R.C. 2505.02. The judgment need
only set forth (1) the fact of the conviction, (2) the sentence,
(3) the judge’s signature, and (4) the time stamp indicating the
entry of the judgment on the journal by the clerk. Id.
{¶ 10} Defendant’s 2007 judgment of conviction satisfied the
Lester requirements. It was a valid final order.
{¶ 11} Defendant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 12} “A LAPSE OF OVER THREE YEARS BETWEEN TRIAL AND SENTENCING
VIOLATES THE APPELLANT’S RIGHT TO SPEEDY SENTENCING UNDER CRIM.R.
32(A).”
THIRD ASSIGNMENT OF ERROR
{¶ 13} “THE APPELLANT’S SPEEDY TRIAL RIGHTS WERE VIOLATED BY
A THREE YEAR TRIAL.”
{¶ 14} These assignments of error are predicated on Defendant’s
contention that, because imposition of sentence is an integral
part of a defendant’s trial, the delay between Defendant’s
original, “void” judgment of conviction entered on December 17,
2007, and the corrected judgment of conviction the court entered
on February 23, 2010, stating the manner of his conviction, violates
Defendant’s statutory and constitutional right to a speedy trial.
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In effect, Defendant argues that his trial was ongoing for over
three years.
{¶ 15} The December 17, 2007 judgment of conviction was not
void for failure to state the manner of Defendant’s conviction,
as we explained in overruling the first assignment of error. It
was complete when journalized because the judgment set forth (1)
the fact of the conviction, (2) the sentence imposed, (3) the
judge’s signature, and (4) a time-stamp indicating entry upon the
journal by the clerk. Lester. The February 28, 2010 amended
judgment of conviction did not add an element necessary to a final
order. Defendant’s “trial” was concluded when the 2007 judgment
of conviction was entered. His speedy trial rights were not
violated. Further, Defendant’s failure to raise the speedy trial
issue in the trial court waives his right to argue the error on
appeal.
{¶ 16} Defendant’s second and third assignments of error are
overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 17} “THE TRIAL COURT ERRED IN NOT CONDUCTING A FULL
SENTENCING HEARING DE NOVO.”
{¶ 18} When Defendant appeared in court on February 23, 2011,
for a resentencing hearing pursuant to R.C. 2929.191, it was for
the limited purpose of correcting a defect in the imposition of
postrelease control. Defendant argues that the trial court erred
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by limiting that resentencing hearing to the proper imposition
of postrelease control and not holding a new, de novo resentencing
hearing. We disagree.
{¶ 19} A proceeding to correct defect in notifying a defendant
of postrelease control requirements is limited to that matter,
and does not require a de novo sentencing proceeding. State v.
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. In
the present case, the resentencing, which preceded Lester, was
properly limited to the correction of the postrelease control
defect. State v. Ludy, 2d Dist. Montgomery No. 24261,
2011-Ohio-4544, at ¶17.
{¶ 20} Defendant’s fourth assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶ 21} “THE TRIAL COURT ERRED IN FAILING TO STAY APPELLANT’S
COSTS, FINES AND RESTITUTION.”
{¶ 22} Defendant moved to stay collection of court costs, fines,
and restitution on December 17, 2010, when his judgment of
conviction was filed. The trial court overruled the motion, citing
State v. Glandon, 2d Dist. Montgomery No. 20988, 2006-Ohio-39,
holding that it lacked jurisdiction to grant the relief Defendant
requested.
{¶ 23} Defendant argues that the trial court erred in its
reliance on Glandon. We agree. Glandon involved the court’s
power to recall execution of a judgment that had imposed costs,
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in order to avoid monies from being withheld from a prisoner’s
account. We found that the defendant’s mode of relief to require
compliance with the Ohio Administrative Code was through a writ
of mandamus.
{¶ 24} Nevertheless, we agree with the trial court that
Defendant was not entitled to the relief his motion requested:
an order staying the court’s imposition of a duty to pay cost,
fines and restitution. A court lacks the power to grant that relief
absent statutory authority. State v. Clevenger, 114 Ohio St.3d
258, 2007-Ohio-4006, 871 N.E.2d 589. Defendant has cited no such
authority, and we are aware of none. The court may, upon a finding
of indigency, waive costs. R.C. 2949.092. However, that is not
the relief Defendant requested.
{¶ 25} Defendant’s fifth assignment of error is overruled.
SIXTH ASSIGNMENT OF ERROR
{¶ 26} “THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION
TO FILE A DELAYED MOTION FOR NEW TRIAL.”
{¶ 27} Defendant argues that the trial court abused its
discretion by overruling his motion for leave to file an untimely
motion for a new trial based upon newly discovered evidence.
{¶ 28} The decision whether to grant a motion for a new trial
lies within the sound discretion of the trial court and will not
be disturbed on appeal absent an abuse of that discretion. State
v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990).
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{¶ 29} “Abuse of discretion” has been defined as an attitude
that is unreasonable, arbitrary or unconscionable. Huffman v. Hair
Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985).
It is to be expected that most instances of abuse of discretion
will result in decisions that are simply unreasonable, rather than
decisions that are unconscionable or arbitrary.
{¶ 30} A decision is unreasonable if there is no sound reasoning
process that would support that decision. It is not enough that
the reviewing court, were it deciding the issue de novo, would
not have found that reasoning process to be persuasive, perhaps
in view of countervailing reasoning processes that would support
a contrary result. AAAA Enterprises, Inc. v. River Place Community
Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 31} Pursuant to Crim.R. 33(A)(6), a new trial may be granted
when new evidence material to the defense is discovered that the
defendant could not with reasonable diligence have discovered and
produced at trial. To prevail on a motion for new trial based upon
newly discovered evidence, Defendant must show that the new
evidence: (1) discloses a strong probability that the result of
the trial would be different if a new trial were granted; (2) has
been discovered since the trial; (3) is such as could not have
been discovered before the trial through the exercise of due
diligence; (4) is material to the issues; (5) is not merely
cumulative to former evidence; and (6) does not merely impeach
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or contradict the former evidence. State v. Petro, 148 Ohio St.
505, 76 N.E.2d 370 (1947); State v. DeVaughns, 2d Dist Montgomery
No. 23720, 2011-Ohio-125.
{¶ 32} Motions for a new trial based upon newly discovered
evidence must be filed within one hundred twenty days after the
verdict was rendered, unless it appears by clear and convincing
proof that the movant was unavoidably prevented from discovering
the new evidence, in which case the motion for new trial must be
filed within seven days after an order of the court finding that
Defendant was unavoidably prevented from discovering the new
evidence within the one hundred twenty day period. Crim.R. 33(B).
{¶ 33} Defendant was convicted of complicity to commit
felonious assault, with a firearm specification. The conviction
was supported by evidence that Defendant handed a firearm to the
victim’s girlfriend, which she then used to shoot the victim, twice.
Defendant’s motion for a new trial is predicated upon alleged
newly discovered evidence, the testimony of Brian Davis.
{¶ 34} Defendant claims Davis was a witness to the shooting,
and that he was unaware of Davis’ testimony until they met in
February 2010, over two years after Defendant’s trial, while both
men were incarcerated at London Correctional Institute. According
to Defendant, if called to testify at trial Davis would have
testified that Defendant did not provide the victim’s girlfriend
the weapon she used to shoot the victim. Defendant’s claim is
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supported by an affidavit signed by Davis and dated May 3, 2010.
{¶ 35} The court held an evidentiary hearing on Defendant’s
motion on October 15, 2010. Defendant and Brian Davis testified
at the hearing. The trial court found that Defendant’s testimony
at the hearing was not credible. The court further found that
Defendant knew Davis prior to this shooting, through dealings with
him involving the sale of drugs, and that Defendant and Davis
interacted on the night of this shooting. Additionally, the trial
court pointed out that Davis testified at the hearing on Defendant’s
motion for a new trial and denied providing the information
contained in his affidavit, said that Defendant wrote out his
affidavit, and disputed the contents of his affidavit and stated
that he could not testify at trial to the information contained
in his affidavit. The court also pointed out that Davis testified
that he could offer only limited testimony, which is that he saw
a girl hollering, and heard gunshots, and then he and Defendant
began running. Furthermore, Defendant’s witness list filed prior
to trial included a “Ryan Davis.”
{¶ 36} Following oral argument, Defendant moved to supplement
the record with a transcript of the October 15, 2010 hearing on
his motion for new trial, and for leave to thereafter file a
supplemental brief regarding the testimony of Defendant and Brian
Davis at that hearing. We granted Defendant’s motion, permitting
the parties to file supplemental briefs within twenty days after
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the transcript was filed. The transcript was filed on February
14, 2012. Defendant has not filed a supplemental brief. The State
filed a notice of its intention to not file a supplemental brief.
{¶ 37} On April 3, 2012, Defendant filed a motion captioned
Correction Or Modification Of The Record Pursuant to Appellate
Rule 9(E). Defendant complains that the transcript of the October
15, 2010 hearing that was filed is incomplete because the word
“indiscernible” appears at various places in the transcribed
testimonies of Defendant and Brian Davis. App.R. 9(E) authorizes
correction of omissions from the record by this court “on proper
suggestion or of its own initiative.” Defendant does not identify
or suggest what matters were omitted. The motion is Denied.
{¶ 38} We find no abuse of discretion in the trial court’s denial
of Defendant’s motion for a new trial on the court’s finding that
Defendant failed to demonstrate by clear and convincing proof that
he was unavoidably prevented from discovering the new evidence.
{¶ 39} Defendant’s sixth assignment of error is overruled.
The judgment of the trial court will be affirmed.
FAIN, J., And HALL, J., concur.
Copies mailed to:
Andrew T. French, Esq.
George A. Katchmer, Esq.
Hon. Mary Katherine Huffman