[Cite as State v. Buxton, 2014-Ohio-507.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
DENNY R. BUXTON : Case No. 13-COA-035
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
04-CRI-089
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 10, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RAMONA J. ROGERS DENNY BUXTON, PRO SE
Prosecuting Attorney #474-778
2500 South Avon Beldon Rd.
By: JOSHUA T. ASPIN Grafton, OH 44044
Assistant Prosecuting Attorney
110 Cottage Street, Third Fl.
Ashland, OH 44805
Ashland County, Case No. 13-COA-035 2
Baldwin, J.
{¶1} Defendant-appellant Denny Buxton appeals from the October 2, 2013
Judgment Entry of the Ashland County Court of Common Pleas. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 26, 2004, the Ashland County Grand Jury indicted appellant
on three (3) counts of burglary in violation of R.C. 2911.12(A)(3), felonies of the third
degree, and two (2) counts of grand theft in violation of R.C. 2913.02(A)(1), felonies of
the fourth degree. Appellant was arraigned on January 10, 2005.
{¶3} On March 2, 2005, appellant pleaded guilty to two (2) counts each of
burglary and grand theft. The remaining count was dismissed. Pursuant to a Judgment
Entry filed on April 15, 2005, appellant was sentenced to five (5) years in prison on each
of the burglary counts and 18 months in prison on each of the attempted grand theft
counts. The trial court ordered that the five (5) year sentences on the burglary counts
were to be served consecutively. Furthermore, the sentence on each one of the
attempted grand theft counts was ordered to be served concurrently to each one of the
burglary counts. Thus, the aggregate sentence was ten years. In addition, the trial court
ordered appellant to pay restitution to one of the victims in the amount of $250.00 and to
pay restitution to another victim, James Biddinger, in an amount to be determined
pursuant to a future court order.
{¶4} Via a Judgment Entry filed on August 11, 2005, the trial court vacated the
requirement that appellant pay restitution to James Biddinger because Biddinger had
Ashland County, Case No. 13-COA-035 3
been given an opportunity to provide restitution information to the court and had failed to
do so.
{¶5} Appellant then appealed. Pursuant to an Opinion filed on May 20, 2006 in
State v. Buxton, 5th Dist. Ashland No. 05COA020, 2006-Ohio-2521, this Court
reversed the judgment of the trial court and remanded the matter for resentencing in
accordance with State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1.
{¶6} A resentencing hearing was held on July 24, 2006. At such time, appellant
withdrew his request for resentencing and, as memorialized in a Judgment Entry filed
on August 3, 2006, was sentenced to the same sentence. The trial court, in its
Judgment Entry, again ordered appellant to pay restitution in the amount of $250.00 to
one of the victims. However, the trial court did not order appellant to pay restitution to
any other victim.
{¶7} Appellee, on November 9, 2009, filed a Motion to Resentence and request
for hearing to address the term of post-release control that appellant would be facing
upon his release from prison. On June 8, 2010, the trial court issued a Nunc Pro Tunc
Sentencing Judgment Entry that advised appellant of post-release control. The trial
court, in its Judgment Entry, indicated that such entry “contains exact advisements give
to the Defendant concerning post-release control at his original sentencing hearing.”
{¶8} Appellant appealed from the June 8, 2010 Judgment Entry. On
September 22, 2010, this Court dismissed appellant’s appeal for want of prosecution.
{¶9} Thereafter, on June 28, 2013, appellant filed a Motion for Final Appealable
Order. Appellant, in his motion, argued that the April 15, 2005 Judgment Entry was not
Ashland County, Case No. 13-COA-035 4
a final appealable order because, with respect to one of the victims, James Biddinger,
the trial court stated that the amount of restitution would be determined at a later date
by the court. Appellee filed a memorandum contra appellant’s motion on July 2, 2013.
{¶10} The trial court, pursuant to a Judgment Entry filed on October 2, 2013,
denied appellant’s motion. The trial court, in its Judgment Entry, found that appellant
was barred by the doctrine of res judicata from raising the issue raised in his motion and
that he failed to raise such issue on appeal.
{¶11} Appellant now appeals from the trial court’s October 2, 2013 Judgment
Entry, raising the following assignment of error on appeal:
{¶12} A TRIAL COURT ABUSES ITS DISCRETION IN DENYING A
DEFENDANT’S MOTION FOR FINAL APPEALABLE ORDER IN THIS MATTER FOR
NOT COMPLYING WITH THE MANDATORY STATUTORY LANGUAGE AS SET
FORTH IN R.C. 2929.18(A)(1).
I
{¶13} Appellant, in his sole assignment of error, argues that the trial court erred
in denying his Motion for Final Appealable Order because the trial court did not comply
with R.C. 2929.18(A)(1), which concerns restitution. We disagree.
{¶14} Appellant, in his motion, argued that the April 15, 2005 Judgment Entry
was not a final appealable order because, with respect to one of the victims, James
Biddinger, the trial court stated that the amount of restitution would be determined at a
later date by the court. On such basis, appellant argued that the trial court did not
comply with R.C. 2919.18(A)(1) which provides that if the court imposes restitution at
sentencing, the court must determine the amount of restitution at that time.
Ashland County, Case No. 13-COA-035 5
{¶15} However, pursuant to a Judgment Entry filed on August 11, 2005, the trial
court vacated the requirement that appellant pay restitution to James Biddinger because
Biddinger had been given an opportunity to provide restitution information to the court
and had failed to do so. Moreover, subsequently, on July 24, 2006, appellant was
resentenced following reversal by this Court. The trial court’s August 3, 2006 Judgment
Entry, which superseded the April 15, 2005 Judgment Entry, ordered appellant to pay
$250.00 to one of the victims, but deleted the requirement that appellant pay restitution
in an amount be later determined to Biddinger. Thus, contrary to appellant’s assertion,
there is no court entry ordering appellant to pay restitution to James Biddinger
{¶16} Appellant’s sole assignment of error is, therefore, overruled.
Ashland County, Case No. 13-COA-035 6
{¶17} Accordingly, the judgment of the Ashland Count Court of Common Pleas
is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CRB/dr