[Cite as State v. Monk, 2014-Ohio-2486.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. John W. Wise, J.
:
-vs- :
: Case No. 14 CA 1
DANIEL L. MONK :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 10 CR 526
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 6, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT DANIEL L. MONK, PRO SE
LICKING COUNTY PROSECUTOR Post Office Box 5500
20 South Second Street, Fourth Floor Chillicothe, Ohio 45601
Newark, Ohio 43055
[Cite as State v. Monk, 2014-Ohio-2486.]
Wise, J.
{¶1} Defendant-Appellant Daniel L. Monk appeals the December 18, 2013,
decision of the Licking County Common Pleas Court denying his Motion to Correct
Sentence.
{¶2} Plaintiff-Appellee is the State of Ohio.
{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶4} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R.11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶5} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE CASE AND FACTS
{¶6} Appellant was indicted on two counts of sexual battery and one count of
contributing to the delinquency of a minor.
{¶7} On November 8, 2010, Appellant entered an initial plea of not guilty by
reason of insanity. The trial court ordered a competency evaluation, and a hearing was
scheduled for December 14, 2010. At Appellant's request, the hearing was then
continued to January 3, 2011.
Licking County, Case No. 14 CA 1 3
{¶8} On January 3, 2011, Appellant moved the trial court to continue the trial
set for January 5, 2011. Appellant also filed a motion to suppress on the same date.
The trial court denied the motions.
{¶9} On January 4, 2011, Appellant retained new counsel.
{¶10} On January 5, 2011, the date scheduled for trial, Appellant's new trial
counsel moved the trial court to continue the jury trial. The trial court denied the motion.
Appellant then entered a plea of no contest to the charges.
{¶11} On February 16, 2011, the trial court sentenced Appellant to three years
incarceration on each count of sexual battery to run consecutively with a six month term
on the one count of contributing to the delinquency of a minor charge, for an aggregate
prison term of six years.
{¶12} Appellant appealed his sentence and conviction to this Court which, by
Opinion filed November 4, 2011, affirmed. See State v. Monk, 5th Dist. Licking App. No.
11-CA-28, 2011-Ohio-5751.
{¶13} On July 23, 2013, Appellant filed a Motion to Correct Sentence.
{¶14} On August 6, 2013, the State filed its response in opposition, arguing (a)
that the issues raised regarding merger and consecutive sentencing were barred by the
doctrine of res judicata; (b) that the motion was in fact an untimely petition for post-
conviction relief under R.C. 2953.21; and (c) the motion was substantively deficient.
{¶15} On December 18, 2013, the trial court denied Appellant’s motion, stating
that it did so “[f]or the reasons set out in the state’s response…”
{¶16} Appellant now appeals, assigning the following error for review:
Licking County, Case No. 14 CA 1 4
ASSIGNMENTS OF ERROR
{¶17} “I. WHETHER THE TRIAL COURT COMMITTED PREJUDICAL ERROR
IN FAILING TO ABIDE BY THE SENTENCING PROVISIONS AS LEGISLATIVELY
PROMULGATED.
{¶18} “II. WHETHER APPELLANT WAS DEPRIVED OF EFFECTIVE
ASSISTANCE OF COUNSEL.”
I.
{¶19} In Appellant’s First Assignment of Error, Appellant argues that the trial
court erred in sentencing. We disagree.
{¶20} Specifically, Appellant challenges the trial court's failure to merge alleged
allied offenses.
{¶21} As stated above, Appellant filed a direct appeal from the imposition of his
sentence, which was affirmed by this Court in November, 2011. Then, on July 23, 2013,
some 29 months after his sentence was imposed, he filed a pro se “Motion to Correct
Sentence” and memorandum in support. Appellant essentially argued that he should not
have received consecutive sentences, and that his convictions should have merged.
{¶22} Upon our review, we find Appellant's motion to correct his sentence should
be construed as a petition for post-conviction relief and dismissed on the basis of res
judicata, because Appellant could have raised his claims on direct appeal. As stated by
the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104
(1967), paragraphs eight and nine of the syllabus:
{¶23} Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceeding, except an appeal from
Licking County, Case No. 14 CA 1 5
that judgment, any defense or claimed lack of due process that was raised or could
have been raised by the defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment.
{¶24} Based on the foregoing, we find that the trial court did not err by denying
Appellant's motion to correct sentence. Accordingly, we find Appellant’s First
Assignment of Error not well-taken and overrule same.
II.
{¶25} In Appellant’s Second Assignment of Error, Appellant argues that he was
denied the effective assistance of counsel.
{¶26} In this assignment of error, Appellant seems to be arguing that he was
denied the effective assistance of counsel at both the trial court level and the appellate
level.
{¶27} With regard to any argument that his trial court counsel was ineffective, we
find that this argument is barred by the doctrine of res judicata. Appellant did in fact
raise this issue in his direct appeal from his sentence, and this Court found said
argument not well-taken,
{¶28} As to Appellant’s argument that his appellate counsel was ineffective, we
find said issue is not properly before this Court. “Claims regarding ineffective assistance
of appellate counsel are not cognizable in post-conviction proceedings brought pursuant
to R.C. 2953.21.” State v. Love, 11th Dist. No. 2007–L–030, 2007–Ohio–6256, ¶ 18,
citing Morgan v. Eads, 104 Ohio St.3d 142, 2004–Ohio–6110, 818 N.E.2d 1157, ¶ 6.
Such claims must be raised in an application for reopening filed pursuant to App.R.
Licking County, Case No. 14 CA 1 6
26(B). Morgan at ¶ 7. Appellant cannot raise claims related to the ineffectiveness of his
appellate counsel in these proceedings.
{¶29} Appellant’s Second Assignment of Error is overruled.
{¶30} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By: Wise, J.,
Gwin, P.J., and
Farmer, J., concur
JWW/d 0529
[Cite as State v. Monk, 2014-Ohio-2486.]