State v. Fields - Case Law

[Cite as State v. Fields, 2014-Ohio-5233.]

COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
GERALD D. FIELDS : Case No. CT2014-0025
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR2009-0166

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 24, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT L. SMITH GERALD D. FIELDS, PRO SE
27 North Fifth Street #617-709
Zanesville, OH 43701 F.M.C.
P.O. Box 23658
1800 Harmon Avenue
Columbus, OH 43223
Muskingum County, Case No. CT2014-0025 2

Farmer, J.

{¶1} On October 13, 2009, appellant, Gerald Fields, pled guilty to one count of

trafficking in drugs in violation of R.C. 2925.03 and one count of permitting drug abuse

in violation of R.C. 2925.13. By journal entry filed November 9, 2009, the trial court

sentenced appellant to an aggregate term of nine years in prison. Appellant's case was

affirmed on appeal. State v. Fields, 5th Dist. Muskingum No. CT2009-0057, 2010-Ohio-

6233 (Fields I). Appellant's appeal to the Supreme Court of Ohio was not accepted for

review. State v. Fields, 128 Ohio St.3d 1459, 2011-Ohio-1829.

{¶2} On April 19, 2011, appellant filed a motion for postconviction relief which

was denied on April 21, 2011. On June 21, 2011, appellant filed a motion to vacate or

set aside conviction or sentence and a motion to amend same on June 23, 2011 which

were denied on June 29, 2011. These decisions were affirmed on appeal. State v.

Fields, 5th Dist. Muskingum No. CT2011-0030, 2011-Ohio-5513 (Fields II). Appellant

did not file an appeal with the Supreme Court of Ohio.

{¶3} On July 19, 2011, appellant filed a motion for sentence modification

pursuant to H.B. No. 86 which was denied on July 22, 2011. This decision was affirmed

on appeal. State v. Fields, 5th Dist. Muskingum No. CT2011-0037, 2011-Ohio-6044

(Fields III). Appellant's appeal to the Supreme Court of Ohio was not accepted for

review. State v. Fields, 131 Ohio St.3d 1472, 2012-Ohio-896.

{¶4} On March 5, 2012, appellant filed a motion to withdraw plea which was

denied on April 24, 2012. On May 7, 2012, the trial court resentenced appellant solely

for the purpose of advising him that he was subject to a three year mandatory term of

postrelease control. These decisions were affirmed on appeal. State v. Fields, 5th Dist.
Muskingum County, Case No. CT2014-0025 3

Muskingum Nos. CT 12-0028 and CT 12-0030, 2012-Ohio-6086 (Fields IV). Appellant's

appeal to the Supreme Court of Ohio was not accepted for review. State v. Fields, 134

Ohio St.3d 1509, 2013-Ohio-1123.

{¶5} On February 6, 2013, appellant filed a motion for sentencing pursuant to

Crim.R. 32(B); Crim.R. 32(C); R.C. 2505.02; and a revised judgment of conviction and

sentence which was denied on May 17, 2013. This decision was affirmed on appeal.

State v. Fields, 5th Dist. Muskingum No. CT2013-0027, 2013-Ohio-5288 (Fields V).

Appellant's appeal to the Supreme Court of Ohio was not accepted for review. State v.

Fields, 138 Ohio St.3d 1468, 2014-Ohio-1674.

{¶6} On August 26, 2013, appellant filed a motion for allied offense

determination which was denied on April 7, 2014.

{¶7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

{¶8} "WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW IN

'RESENTENCING PROCEEDINGS' BY NOT COMPLYING WITH REQUIREMENTS

OF: O.R.C. § 2929.191, AND NOT ISSUING AND RECORDING A CORRECTION OF

THE FORMER JUDGMENT OF CONVICTION 'NUNC PRO TUNC'."

{¶9} "WHETHER FIFTH AMENDMENT "DOUBLE JEOPARDY

PROTECTIONS" ARE SUBJECT TO 'WAIVER' BY NON-COMPLIANCE OF THE

TRIAL COURT TO ISSUED UPON REQUIRED 'ALLIED OFFENSE DETERMINATION

PROCEDURES,' AND WHETHER THE CONFLICTED STATUTES [O.R.C. §
Muskingum County, Case No. CT2014-0025 4

2941.25(A)] AND [O.R.C. § 2929.19(B)(1)] CREATE AN IRRECONCILABLE

CONSTITUTIONAL IMPERATIVE AS A MATTER OF LAW REQUIRING THE LATTER

TO BE STRUCK DOWN AS UNCONSTITUTIONAL."

{¶10} Appellant claims the trial court erred in resentencing him. We disagree.

{¶11} Appellant argues in his brief at 5-6 that the trial court "did not prepare and

issue a correction to the judgment of conviction, and it did not place 'upon the journal of

the court an entry nunc pro tunc to record the correction of the judgment of conviction,'

as required in unmistakable mandatory language by: O.R.C. § 2929.191(A)(2)."

Appellant also argues in his brief at 6 that "there is no final appealable order" because

of "multiple entries."

{¶12} The May 7, 2012 resentencing was reviewed and affirmed on appeal in

both Fields IV and V.

{¶13} In Fields IV, appellant argued he should have been afforded a de novo

hearing on resentencing. This court disagreed, finding at ¶ 22, "appellant is subject to

Fischer [State v., 128 Ohio St.3d 92, 2010-Ohio-6238] and the trial court did not err in

resentencing him for the limited purpose of correctly advising him of the mandatory 3-

year term of postrelease control."

{¶14} In Fields V, appellant argued multiple entries did not create a finable

appealable order. This court disagreed, finding at ¶ 22 that the sentencing entry

resulting from the May 7, 2012 resentencing was "a valid, final appealable order in this

case," and once again noting the May 7, 2012 resentencing hearing was, "correctly

limited to the proper imposition of post release control."
Muskingum County, Case No. CT2014-0025 5

{¶15} We find appellant's arguments herein are barred under the law of the case

doctrine:

Briefly, the doctrine provides that the decision of a reviewing court

in a case remains the law of that case on the legal questions involved for

all subsequent proceedings in the case at both the trial and reviewing

levels.

The doctrine is considered to be a rule of practice rather than a

binding rule of substantive law and will not be applied so as to achieve

unjust results. However, the rule is necessary to ensure consistency of

results in a case, to avoid endless litigation by settling the issues, and to

preserve the structure of superior and inferior courts as designed by the

Ohio Constitution. (Citations omitted.)

Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984).

{¶16} Assignment of Error I is denied.

{¶17} Appellant claims he was subject to double jeopardy because the trial court

erred in failing to make a determination on allied offenses. We disagree.

{¶18} This issue was reviewed in Fields I under Assignment of Error V and

denied. Nolan, supra.
Muskingum County, Case No. CT2014-0025 6

{¶19} Furthermore, appellant's conviction and sentence were final on December

15, 2010 (Fields I). Any argument relative to allied offenses pursuant to State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, decided December 29, 2010, is

misplaced as explained by this court in State v. Lumpkin, 5th Dist. Licking No. 12-CA-

83, 2013-Ohio-3105, ¶ 11:

The Ohio Supreme Court's holding in Johnson, supra, does not

apply retroactively. See, State v. Holliday, 5th Dist. No. 11 CAA110104,

2012-Ohio-2376; State v. Hickman, 5th Dist. 11 CA54, 2012-Ohio-2182

citing State v. Parson, 2nd Dist. 24641, 2012-Ohio-730. A new judicial

ruling may be applied only to cases pending on the announcement date.

State v. Parson, 2nd Dist. No. 24641, 2012-Ohio-730. The new judicial

ruling may not be applied retroactively to a conviction that has become

final, i.e., where the accused has exhausted all of his appellate remedies.

Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592. Accordingly,***his

reliance on Johnson is misplaced as his conviction and sentence were

already final prior to the date the Supreme Court pronounced its holding

therein.

{¶20} Assignment of Error II is denied.
Muskingum County, Case No. CT2014-0025 7

{¶21} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

SGF/sg 1112