STATE OF OHIO v. BRIAN S. GARVER
Case No. 10-CA-11
COURT OF APPEALS HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 6, 2011
2011-Ohio-2349
Hon. W. Scott Gwin, P.J.; Hon. Sheila G. Farmer, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas Case No. 09-CR-16; 09-CR-32. JUDGMENT: AFFIRMED.
For Plaintiff-Appellee:
F. CHRISTOPHER OEHL Assistant County Prosecutor Holmes County 164 E. Jackson St. Millersburg, Ohio 44654
For Defendant-Appellant:
BRIAN S. GARVER, #571-139 P.O. Box 8107 Mansfield, Ohio 44901
Delaney, J.
{¶1} Defendant-Appellant, Brian Garver, appeals the denial of his “Motion to Re-sentence to Correct a Void Judgment Pursuant to
{¶2} On March 6, 2009, Appellant was indicted by the Holmes County Grand Jury for Failure to Comply with the Order of a Police Officer, a felony of the third degree, in violation of
{¶3} The two cases were joined upon motion of the State of Ohio and came to trial on June 8, 2009. Appellant exercised his right to a jury trial and was convicted of all charges, including Failure to Comply with the Order of a Police Officer by jury verdict. The verdict form that the jury signed stated as follows:
{¶4} “We, the Jury, do find the Defendant Brian Garver guilty of the offense of failure to comply with order or signal of police officer, as charged in the indictment.” All twelve jurors signed the form.
{¶5} The jury then made an additional finding as follows:
{¶6} “Having found Defendant guilty, we do further find that Defendant‘s operation of the motor vehicle caused a substantial risk of serious physical harm to persons or property.” Again, all twelve jurors signed, approving the additional finding on June 8, 2009.
{¶7} Appellant did not object to the verdict forms at trial.
{¶8} Appellant was sentenced to four years in prison and was advised of his right to appeal. Appellant failed to file a direct appeal to this court.
{¶9} Appellant then filed a “Motion for Re-sentence to Correct Void Judgment Pursuant to
{¶10} Appellant now raises one Assignment of Error:
{¶11} “I. WHEN THE TRIAL COURT SUBMITS IMPROPER VERDICT FORMS THAT DO NOT INCLUDE THE DEGREE OF THE OFFENSE NOR THE PROPER AGGRAVATING ELEMENTS TO THE JURY, DEFENDANT-APPELLANT IS ENTITLED TO BE RESENTENCED IN COMPLIANCE WITH THE RULINGS OF THE OHIO SUPREME COURT IN STATE V. PELFREY.”
I.
{¶12} In his sole assignment of error, Appellant argues that the trial court erred in denying his motion to correct a void judgment pursuant to
{¶13}
{¶14} “When the presence of one or more additional elements makes an offense one of more serious degree[,] * * * [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
{¶15} Appellant additionally argues that under Pelfrey, supra, the verdict form must either include the degree of the offense or a statement that an aggravating element has been found to justify convicting him of a greater degree of a criminal offense. In the present case, Appellant asserts therefore that the verdict form did not specify the level of the offense, the section of the revised code that was violated, and/or the additional elements of the offense of “willfully fleeing or eluding” contained in
{¶16} In State v. Branco, 5th Dist. No. 2010-CA-00098, 2010-Ohio-3856, this Court recently rejected a similar argument presented by a defendant who had been convicted of aggravated murder, aggravated, burglary, aggravated robbery, and kidnapping. Also, in State v. Brown, 5th District No. 09-CA-137, 2010-Ohio-2757, we additionally rejected this argument presented by a defendant who had been convicted of aggravated murder in 2005.
{¶17} Initially, we refused to apply Pelfrey to Branco or Brown‘s appeals, noting that Pelfrey applies only in a procedural posture of a direct appeal. Branco at ¶14; Brown at ¶17.
{¶18} 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 reconsider a valid
{¶19} Applying our rationale in Branco and Brown, we find Appellant‘s arguments to be without merit. The trial court was within its discretion to deny Appellant‘s motion.
{¶20} Moreover, even if we were to consider Appellant‘s arguments on the merits, we find that the verdict forms did comply with Pelfrey, as the jury made the following additional finding: “Having found Defendant guilty, we do further find that Defendant‘s operation of the motor vehicle caused a substantial risk of serious physical harm to persons or property,” thus properly elevating the level of offense.
{¶21} Appellant‘s assignment of error is overruled.
{¶22} The judgment of the Holmes County Court of Common Pleas is affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
STATE OF OHIO v. BRIAN S. GARVER
Case No. 10-CA-11
IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO FIFTH APPELLATE DISTRICT
2011-Ohio-2349
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Holmes County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER