State v. BarcusState v. Barcus
For Plaintiff-Appellee
KENNETH OSWALT PROSECUTING ATTORNEY 20 South Second Street 4th Floor Newark, Ohio 43055
For Defendant-Appellant
ROBERT M. BARCUS, PRO SE LONDON CORRECTIONAL INSTITUTION 1580 State Route 56 SW Post Office Box 69 London, Ohio 43140-0069
Wise, J.
{¶1} Appellant Robert M. Barcus appeals the March 25, 2009, Judgment Entry of the Licking County Common Pleas Court denying his motion to vacate fines and court costs.
{¶2} Appellee is State of Ohio.
{¶3} This case comes to us on the accelerated calendar.
{¶4} “(E) Determination and judgment on appeal. The appeal will be determined as provided by
{¶5} This appeal shall be considered in accordance with the aforementioned rule.
STATEMENT OF THE FACTS AND CASE
{¶6} On September 2, 2004, Appellant Robert M. Barcus, entered pleas of no contest to one count of complicity to commit trafficking in marijuana, two counts of possession of marijuana and two counts of trafficking in marijuana. The trial court sentenced Appellant to concurrent sentences to be served at the Orient Reception Center, with said sentence to run consecutive to his sentence in Case No. 02 CR 00096.
{¶7} On September 22, 2004, Appellant filed a motion captioned “Modification of Sentence to Vacate Payment of Fines“.
{¶9} By Judgment Entry filed November 1, 2004, the trial court denied Appellant‘s motion.
{¶10} On March 5, 2009, Appellant filed an appeal from the trial court‘s September 22, 2004, Entry, which was assigned Case No. 09-CA-23. This case was ultimately dismissed by this Court on March 27, 2009.
{¶11} On March 5, 2009, Appellant also filed a Motion for Jail-Time Credit and a Motion Requesting the Court to Vacate Payment of Fines and Court Costs with the trial court.
{¶12} By Judgment Entry filed March 25, 2009, the trial court found that it was without jurisdiction to consider Appellant‘s motion to vacate fines and costs as a result of the appeal filed in Case No. 09-CA-23. The trial court also stated in its Entry that it had previously ruled on this motion on November 1, 2004, and that such issue was now res judicata, as Appellant could have filed a direct appeal from said Entry but failed to do so.
{¶13} The trial court, by separate entry dated March 25, 2009, also denied Appellant‘s motion for jail-time credit.
{¶14} On April 20, 2009, Appellant filed a Notice of Appeal from the trial court‘s March 25, 2009, Judgment Entry denying his Motion Requesting the Court to Vacate Payment of Fines and Court Costs.
{¶15} On May 4, 2009, Appellant proceeded to file two separate appeal briefs. As both briefs have identical cover pages and were filed and time-stamped at the same
{¶16} The assignments of error set forth in each of the briefs are as follows:
“Brief 1”
{¶17} “I. APPELLANT, WHO WAS SENTENCED ON MULTIPLE CHARGES, WAS ENTITLED TO EQUAL JAIL-TIME CREDIT FOR PRETRIAL DETENTION AGAINST ALL CONCURRENT TERMS, WHICH INCLUDE HIS SENTENCES FOR HIS FELONY DRUG CONVICTIONS. THE FAILURE TO AWARD JAIL TIME CREDIT AGAINST ALL CONCURRENT TERMS VIOLATES
{¶18} “II. THE TRIAL COURT DENIED THE DEFENDANT-APPELLANT HIS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW WHEN THEY DENIED HIM THE JAIL-TIME CREDIT HE SERVED PRIOR TO CONVICTION AND SENTENCE AND PRIOR TO TRANSPORTATION TO THE PLACE WHERE HE WAS TO BEGIN SERVING THE SENTENCE IMPOSED BY THE TRIAL COURT. ”
“Brief 2”
{¶19} “I. THE TRIAL COURT ERRED IN ITS FAILURE TO VACATE THE IMPOSITION OF FINES, COURT COST [SIC], AND/OR RESTITUTION IMPOSED UPON DEFENDANT-APPELLANT.
{¶21} “III. TRIAL COURT WAS INEFFECTIVE IN THAT TRIAL COUNSEL FAILED TO FILE AN AFFIDAVIT OF INDIGENCE EITHER AT THE TIME OF OR PRIOR TO SENTENCING DEFENDANT-APPELLANT BY THE TRIAL COURT.
{¶22} “IV. THE TRIAL COURT ERRED IN ITS FAILURE TO TAKE INTO CONSIDERATION THE MANNER AND/OR METHOD OF WHICH THE DEFENDANT-APPELLANT WOULD HAVE TO PAY THE FINES, COURT COST [SIC] AND/OR RESTITUTION IMPOSED AT OR DURING SENTENCING.”
{¶23}
{¶24} An appellate court need not review the merits of the judgment or order, unless it is designated or otherwise referenced in the notice of appeal. In re: Allen, (June 1, 2004), 5th Dist. App. No. 03CAF08041; Schloss v. McGinness (1984), 16 Ohio App.3d 96, 97-98, 474 N.E.2d 666.
{¶25} As Appellant‘s Notice of Appeal and Docketing Statement state only that Appellant is appealing from the trial court‘s entry denying his motion to vacate payment of fines and court costs, we shall only address the assignments of error raised in the brief designated as Brief #2.
{¶26} We shall address Appellant‘s assignments of error simultaneously as they all address the trial court‘s denial of his motion to vacate fines and court costs.
{¶27} As set forth above in the procedural history of this case, Appellant, on September 22, 2004, filed a motion for “Modification of Sentence to Vacate Payment of Fines” which the trial court denied on November 1, 2004, after conducting a hearing.
{¶28} Upon review, we find that the issue raised in Appellant‘s September 22, 2004, “Modification of Sentence to Vacate Payment of Fines” was cognizable on direct appeal. Sellers v. Kiger, 5th Dist. App. No. 2004CA00005, 2004-Ohio-7270.
{¶29} Appellant failed to file a direct appeal from this ruling or a direct appeal of his conviction or sentence. Appellant did not file a petition for post-conviction relief pursuant to
{¶30} It is well-settled that a party may not use a
{¶31} It is well settled that a
{¶33} Accordingly, Appellant‘s assignments of error are overruled.
{¶34} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Licking County, Ohio, is affirmed.
By: Wise, J.
Farmer, P. J., and
Gwin, J., concur.
/S/ JOHN W. WISE__________________
/S/ SHEILA G. FARMER_______________
/S/ W. SCOTT GWIN__________________
JUDGES
JWW/d 626
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to Appellant.
/S/ JOHN W. WISE_________________
/S/ SHEILA G. FARMER_____________
/S/ W. SCOTT GWIN________________
JUDGES