Opinion
No. 2010CA00133.
DATE OF JUDGMENT ENTRY: February 14, 2011.
Appeal from the Stark County Court of Common Pleas, Case No. 1999CR0515.
Affirmed.
John D. Ferrero, Prosecuting Attorney, Stark County, Ohio, by: Ronald Mark Caldwell, Assistant Prosecuting Attorney, Appellate Section, for Plaintiff-Appellee.
Kenneth W. Frame, Stark County Public Defender Office, for Defendant-Appellant.
Before: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.
OPINION
{¶ 1} Defendant-appellant Artemus Driver appeals the April 12, 2010 Judgment Entry entered by the Stark County Court of Common Pleas which resentenced him on one count of rape, one count of felonious assault and one count of kidnapping. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE
A rendition of the facts is unnecessary for our disposition of this appeal.
{¶ 2} Appellant was found guilty of the aforementioned charges following a trial by jury. The trial court entered convictions of the charges and sentenced Appellant via Judgment Entry journalized August 26, 1999.
{¶ 3} Appellant filed a direct appeal from the August 26, 1999 Judgment Entry in this Court. We affirmed the trial court's judgment entry. See State v. Driver (October 23, 2000), Stark App. No. 1999-CA-00290, unreported.
{¶ 4} On April 12, 2010, the trial court resentenced Appellant pursuant to the direction of the Ohio Supreme Court as pronounced in State v. Singleton (2009), 124 Ohio St.3d 173, 2009-Ohio-6434. The new sentence was journalized April 19, 2010. It is from that judgment entry Appellant prosecutes this appeal assigning as error:
{¶ 5} "I. THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO ARGUE AND PRESENT EVIDENCE REGARDING APPELLANT'S PRIOR BAD ACTS.
{¶ 6} "II. THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION, AND THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
I II
{¶ 7} Because the same rationale for our decision applies to both assignments of error, we was shall address them together.
{¶ 8} The entry under review was generated in accordance with the procedure set forth in Singleton to correct errors or deficiencies involving notification and journalization of post release control sanctions, committed during a defendant's initial sentencing. Appellant's present assignments of error were or could have been raised in his initial direct appeal to this Court.
{¶ 9} This Court has repeatedly held such resentencings do not allow a defendant to challenge anew his conviction(s) as such is barred under the principles of law of the case and/or res judciata. This Court's position has been validated by two recent Ohio Supreme Court decisions: State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283; and State v. Fischer, 2010-Ohio-6238. Pursuant to Ketterer and Fischer, Appellant's two assignments of error are overruled.
{¶ 10} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J. Gwin, P.J. and Wise, J. concur
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion, the April 19, 2010 Judgment Entry of the Stark County Court of Common Pleas is affirmed. Costs to Appellant.