State v. MIllerState v. MIller
{¶1} Defendant-appellant Curtis Allen Miller appeаls 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
{¶3} A jury trial commenced on Januаry 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
{¶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.
{¶9} “(E) Determination and judgment on aрpeal. The appeal will be determined as provided by
{¶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 sentеnce 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
{¶13}
{¶14} “(A) When the рresence 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 аffidavit, 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 offensе of which the offender is found guilty, or that such additional element or elements are present.
{¶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
{¶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 Appеals 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 rеopen the appeal under
{¶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
{¶20} “Under the doctrine of res judicata, a final judgment of conviction bars a cоnvicted 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
{¶23} Beсause 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 dеnying 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
{¶26} “(A) No person, by force, stealth, or deception, shall do any of the following:
{¶27} “* * *
{¶28} “(2) Trespass in аn occupied structure or in a separately secured or separately occupied portion of an occupied structure that is a permanent оr 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} “* * *
{¶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 thе 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
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