[Cite as State v. MIller, 2011-Ohio-3039.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
:
-vs- :
: Case No. 2011-CA-00074
CURTIS ALLEN MILLER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County
Court of Common Pleas, Case No. 2005-
CR-1564
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 20, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO CURTIS ALLEN MILLER PRO SE
PROSECUTING ATTORNEY #A500-306
BY: KATHLEEN O. TATARSKY Lake Erie Correctional Institution
110 Central Plaza S., Ste 510 Box 8000
Canton, OH 44702 Conneaut, OH 44030
[Cite as State v. MIller, 2011-Ohio-3039.]
Gwin, P.J.
{¶1} Defendant-appellant Curtis Allen Miller appeals the March 24, 2011
Judgment Entry entered by the Stark County Court of Common Pleas, which denied his
Motion to Vacate Void Judgment Based on Structural Error of Jury Verdict Form and
Improper Notification of Post Release Control. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE1
{¶2} On November 15, 2005, the Stark County Grand Jury indicted appellant
on one count of burglary in violation of R.C. 2911.12. Said charge arose from an
incident wherein appellant broke into a home occupied by two children, ages fourteen
and twelve.
{¶3} A jury trial commenced on January 5, 2006. The jury found appellant guilty
as charged. By judgment entry filed January 17, 2006, the trial court sentenced
appellant to eight years in prison. Appellant appealed and this court affirmed appellant's
conviction, but remanded his case for resentencing in light of State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856. See, State v. Miller, Stark App. No.2006CA00032, 2006-Ohio-
5683. [“Miller 1”].
{¶4} A resentencing hearing was held on November 22, 2006. By judgment
entry filed November 28, 2006, the trial court again sentenced appellant to eight years
in prison. Appellant’s conviction and sentence was affirmed by this Court. See, State v.
Miller, Stark App. No. 2006 CA00378, 2007-Ohio-2466. [“Miller 2”].
{¶5} On March 21, 20011 appellant filed a “Motion to Vacate Void Judgment
Based on Structural Error of Jury Verdict Form and Improper Notification of Post
1
A Statement of the Facts underlying Appellant's conviction is not necessary for our disposition of
this appeal; therefore, such shall not be included herein.
Stark County, Case No. 2011-CA-00074 3
Release Control.” Appellant argued that the jury verdict form only convicted him of
burglary under R.C. 2911.12, a felony of the fourth degree instead of a felony of the
second degree. The trial court overruled the motion on March 24, 2011.
{¶6} It is from the trial court’s overruling of his Motion to Vacate Void Judgment
Based on Structural Error of Jury Verdict Form and Improper Notification of Post
Release Control that appellant has appealed, raising as his sole assignment of error,
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND/OR
COMMITTED PLAIN ERROR IN VIOLATION OF THE OHIO AND UNITED STATES
CONSTITUTIONS BY DENYING THE APPELLANT'S MOTION TO VACATE THE
VOID JUDGMENT BASED ON THE JURY VERDICT FORMS AS RES JUDICATA AS
THE SUFFICIENCY OF A JURY VERDICT FORM TO JUSTIFY CONVICTING A
DEFENDANT OF A GREATER DEGREE OF A CRIMINAL OFFENSE PRESENTS A
QUESTION OF LAW, WHICH THE COURT REVIEWS DE NOVO. A STRUCTURAL
ERROR OF LAW IS A CONSTITUTIONAL DEFECT THAT EFFECTS THE
FRAMEWORK WITHIN WHICH THE TRIAL PROCEEDS RATHER THAN SIMPLY
BEING AN ERROR IN THE TRIAL ITSELF. A STRUCTURAL ERROR GIVES RISE TO
A CONSTITUTIONAL PRESUMPTION OF PREJUDICE AS A MATTER OF
AUTOMATIC REVERSAL, OF WHICH- RES JUDICATA DOES NOT APPLY.”
I.
{¶8} This case comes to us on the accelerated calendar. App. R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶9} "(E) Determination and judgment on appeal. The appeal will be
determined as provided by App. R. 11. 1. It shall be in sufficient compliance with App.
Stark County, Case No. 2011-CA-00074 4
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."
{¶10} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App. 3d 158, 463 N.E.2d
655. This appeal shall be considered in accordance with the aforementioned rule.
{¶11} Appellant maintains his sentence is void claiming the verdict form in his
case was defective because it did not state the level of the offense on which he was
convicted. We disagree.
{¶12} Appellant cites R.C. 2945.75 in support of his argument that error
occurred.
{¶13} R.C. 2945.75 provides:
{¶14} “(A) When the presence of one or more additional elements makes an
offense one of more serious degree:
{¶15} “(1) The affidavit, complaint, indictment, or information either shall state
the degree of the offense which the accused is alleged to have committed, or shall
allege such additional element or elements. Otherwise such affidavit, complaint,
indictment, or information is effective to charge only the least degree of the offense.
{¶16} “(2) A guilty verdict shall state either the degree of the offense of which
the offender is found guilty, or that such additional element or elements are present.
Stark County, Case No. 2011-CA-00074 5
Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the
offense charged.”
{¶17} The Supreme Court of Ohio has interpreted this statute to provide the
requirements for what must be included in a jury verdict form. State v. Pelfrey, 112 Ohio
St.3d 422, 860 N.E.2d 735, 2007-Ohio-256 at ¶ 14. The Pelfrey Court held that
"pursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury must
include either the degree of the offense of which the defendant is convicted or a
statement that an aggravating element has been found to justify convicting a defendant
of a greater degree of a criminal offense." Id. See also, State v. Nethers, Licking App.
No. 07 CA 78, 2008-Ohio-2679 at ¶ 51.
{¶18} In Pelfrey, the jury found him guilty, and he was sentenced on the third-
degree felony conviction to serve four years in prison. The Second District Court of
Appeals affirmed Pelfrey's conviction, rejecting a manifest-weight-of-the-evidence
argument. State v. Pelfrey, Montgomery App. No. 19955, 2004-Ohio-3401. The court of
appeals subsequently granted Pelfrey's application to reopen the appeal under App.R.
26(B). Pelfrey argued that the trial court had erred in entering a conviction of a third-
degree felony because the verdict form and the trial court's subsequent verdict entry
were inadequate to support a conviction of tampering with government records. Instead,
Pelfrey argued that he could have been convicted only of the misdemeanor offense of
tampering with records. See R.C. 2913.42(B) (2).
{¶19} The Second District Court of Appeals agreed with Pelfrey's argument and
stated, “‘Pelfrey's failure to raise this defect at trial did not waive it, and the fact that the
indictment and jury instructions addressed the government-records issue did not cure
Stark County, Case No. 2011-CA-00074 6
the non-compliance with R.C. 2945.75(A) (2).’ ” State v. Pelfrey, Montgomery App. No.
19955, 2005-Ohio-5006, 2005 WL 2327123, ¶ 23, quoting State v. Woullard, 158 Ohio
App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 23.(Emphasis added). The court of
appeals held that “the trial court was required to enter a conviction for first-degree
misdemeanor tampering with records, which is the least degree of the offense under
R.C. § 2913.42.” Id. The Ohio Supreme Court in Pelfrey agreed that he did not waive
the error by failing to raise it in the trial court. 112 Ohio St.3d 425-426, 860 N.E.2d at
735, 2007-Ohio-256 at ¶ 14. (Emphasis added).
{¶20} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating in any
proceeding * * * any defense or any 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 any appeal from that judgment.” State v. Svefcyk (1996), 77 Ohio St.3d
93, syllabus.
{¶21} In the present case, appellant did not seek to present his arguments as a
timely direct appeal; rather he filed a motion to correct a void sentence subsequent to
the time when he could have raised the issue in a direct appeal. We find no reason to
override the general rule in Ohio that a trial court has no authority to reconsider a valid
final judgment in a criminal case. State v. Brown, 5th District No. 09–CA–137, 2010–
Ohio–2757 at ¶ 19, citing State v. Moore, 4th Dist. No. 03CA18, 2004–Ohio–3977.
{¶22} As this Court has previously noted, Pelfrey applies only in a procedural
posture of a direct appeal. State v. Branco, Stark App. No. 2010–CA–00098, 2010–
Ohio–3856 at ¶ 14; State v. Brown, Richland App. No. 09–CA–137, 2010–Ohio–2757 at
Stark County, Case No. 2011-CA-00074 7
¶ 17. In the case at bar appellant could have, but did not, raise this issue in Miller 1 or
even in Miller 2, supra. Appellant had the opportunity to raise this issue on direct
appeal, but, unlike the defendant in Pelfrey, he failed to do so. The doctrine of res
judicata bars appellant from raising this issue anew via a motion to vacate a sentence.
State v. Foy, Stark App. No. 2009-CA-00239, 2010-Ohio-2445 at ¶ 8.
{¶23} Because appellant could have raised this claim on direct appeal, we find
the doctrine of res judicata is applicable and the trial court did not err in denying his
Motion to Vacate Void Judgment Based on Structural Error of Jury Verdict Form and
Improper Notification of Post Release Control.
{¶24} Moreover, even if we were to consider appellant's arguments on the
merits, we find that the verdict forms did comply with Pelfrey.
{¶25} Appellant was convicted of burglary in violation of R.C. 2911.12(A)(2)
which states the following:
{¶26} “(A) No person, by force, stealth, or deception, shall do any of the
following:
{¶27} “* * *
{¶28} “(2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or temporary
habitation of any person when any person other than an accomplice of the offender is
present or likely to be present, with purpose to commit in the habitation any criminal
offense.
{¶29} “* * *
Stark County, Case No. 2011-CA-00074 8
{¶30} “(C) Whoever violates this section is guilty of burglary. A violation of
division (A)(1) or (2) of this section is a felony of the second degree. A violation of
division (A)(3) of this section is a felony of the third degree. A violation of division (A)(4)
of this section is a felony of the fourth degree.”
{¶31} Unlike the statute at issue in Pelfrey, the charge in the case at bar
contains the degree of the offense charged in the language of the statute, and does not
require any additional findings to enhance the level of the offense. Because the statute
under which appellant was convicted defines the degree of the offense charged, the
verdict form complied with Pelfrey without including any additional language or the
degree of the offense charged.
{¶32} Appellant’s sole assignment of error is overruled.
{¶33} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0609
[Cite as State v. MIller, 2011-Ohio-3039.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CURTIS ALLEN MILLER :
:
:
Defendant-Appellant : CASE NO. 2011-CA-00074
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
State v. MIller
Combined Opinion