[Cite as State v. Miley, 2013-Ohio-5673.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 13CA47
MILTON C. MILEY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 05-CR-85 H


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         December 4, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JAMES J. MAYER, JR.                            MILTON C. MILEY, PRO SE
Prosecuting Attorney                           Inmate Number 484-425
Richland County, Ohio                          c/o Allen Correctional Institution
                                               P.O. Box 4501
By: JILL M. COCHRAN                            Lima, Ohio 45802
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 13CA47                                                             2

Hoffman, P.J.


         {¶1}   Defendant-appellant Milton C. Miley appeals the judgment entered by the

Richland County Court of Common Pleas denying his motion to vacate sentence.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF PROCEDURAL HISTORY1

         {¶2}   In 2004, Appellant was indicted by the Richland County Grand Jury on 55

counts in Case No. 2005 CR 0085, including rape, unlawful sexual conduct with a

minor, corrupting another with drugs and disseminating matter harmful to juveniles.

         {¶3}   On May 20, 2005, a jury returned a verdict of guilty as to all counts of the

indictment. On May 31, 2005, the trial court sentenced Appellant to a total prison term of

thirty-five years. The trial court further classified Appellant a sexual predator under R.C.

Chapter 2950. An appeal ensued.

         {¶4}   On September 8, 2006, this Court reversed Appellant's convictions and

remanded the matter for a new trial finding the trial court erred in admitting evidence of

Appellant's prior acts. State v. Miley, 5th Dist. Nos.2005–CA–67 and 2006–CA–14,

2006–Ohio–4670.

         {¶5}   On February 8, 2007, the Richland County Grand Jury indicted Appellant

on four additional charges alleging recently discovered evidence in Case No. 2007 CR

0163. On July 30, 2007, Appellant filed a motion to dismiss the 2007 indictment on

speedy trial grounds. The trial court overruled the motion, via Judgment Entry of

September 21, 2007. The trial court then consolidated the cases and scheduled a trial

date for October 8, 2007.

1
    A rendition of the underlying facts is unnecessary for our disposition of this appeal.
Richland County, Case No. 13CA47                                                         3


      {¶6}   On October 9, 2007, Appellant entered a plea of no contest to two of the

additional charges, counts 58 and 59, of having weapons under disability. Following a

trial by jury, Appellant was convicted on a total 57 counts, and sentenced to thirty-eight

years in prison, via two separate entries in Case Nos. 2005 CR 0085 and 2007 CR

0163. Appellant again appealed.

      {¶7}   In State v. Miley, 5th Dist. Nos. 07–CA–113 and 07–CA–114, 2009–Ohio–

570, this Court dismissed Appellant's appeal for lack of a final, appealable order

pursuant to the Ohio Supreme Court's decision in State v. Baker, 119 Ohio St.3d 197,

2008–Ohio–3330, 893 N.E.2d 163. The entries at issue in the consolidated appeal did

not contain the manner of conviction; therefore, the entries were not final, appealable

orders pursuant to Baker.

      {¶8}   On February 13, 2009, the trial court issued amended sentencing entries.

Appellant filed an appeal of the February 13, 2009 amended sentencing entries. In

State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–4011, this Court first

found the trial court erred in not dismissing counts 58 and 59 charging having weapons

under disability because Appellant's speedy trial rights were violated. We affirmed the

remainder of the trial court's decision in relation to Appellant's conviction and sentence.

On December 2, 2009, the Ohio Supreme declined to accept the case on further

appeal.

      {¶9}   On March 17, 2010, Appellant filed a complaint requesting the issuance of

a writ of mandamus and/or procendendo compelling the trial court to issue a final,

appealable order, which complied with State v. Baker, supra. State ex rel. Miley v.

Henson, Richland App. No.2010–CA–0032, 2010–Ohio–4093. In that case, this Court
Richland County, Case No. 13CA47                                                            4


reviewed the entries issued by the trial court on February 13, 2009, finding although this

Court allowed an appeal based upon the entries to proceed to a conclusion in State v.

Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–4011, the opinion on the merits

was improvidently issued because the order was not a final, appealable order because

the order did not contain a finding of guilt. This Court then ordered the trial court to issue

an entry which complied with the dictates of Baker.2

       {¶10} On December 28, 2010, the trial court filed a Nunc Pro Tunc sentencing

entry in Case No.2005 CR 85H. The Court included amended language “the defendant

had been found guilty” by a jury, and also clarified the terms of postrelease control.

       {¶11} Appellant again filed an appeal to this Court in State v. Miley 5th Dist. No.

2011CA0005, 2011-Ohio-5647. This Court held,

       {¶12} "Applying Lester, we find appellant's convictions were upheld on direct

appeal by this Court in State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–

4011 and the Ohio Supreme Court declined jurisdiction. The convictions were based

upon the entries issued by the trial court on February 13, 2009. Upon review, we find

the entry in the underlying case fully complied with the requirements of Crim.R. 32(C),

and as set forth in the Lester syllabus. Appellant's 2009 judgment of conviction was

final, and any new challenges to it are barred by the doctrine of res judicata. The nunc

pro tunc entry by its very nature applies retrospectively to the judgment it corrects and is

not a new final order from which a new appeal may be taken to again challenge the

underlying conviction.



2
  The State suggests this order was limited to the sentencing entry reflecting appellant's
plea of no contest to the weapons charges in Case No. 2007 CR 163, nevertheless this
Court issued the writ in regards to Case No. 2005 CR 85.
Richland County, Case No. 13CA47                                                          5


       {¶13} "Although Appellant does not challenge on appeal the modified terms of

postrelease control, we note that the doctrine of res judicata still applies to all other

aspects of the conviction, including the determination of guilt. State v. Fischer, 128 Ohio

St.3d 92, 2010–Ohio–6238."

       {¶14} On April 1, 2013, Appellant filed a motion to vacate sentence and to

resentence. Via Judgment Entry of May 2, 2013, the trial court overruled the motion to

vacate and resentence. Appellant now appeals, assigning as error:

       {¶15} “I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT

APPELLANT’S       MOTION      TO    VACATE      SENTENCE       AND     RESENTENCE        IN

ACCORDANCE WITH CRIMINAL RULE 32 (B) VIOLATING HIS RIGHTS TO EQUAL

PROTECTION UNDER THE LAW AND RIGHT TO DUE PROCESS AS GUARANTEED

BY BOTH THE UNITED STATES AND THE OHIO CONSTITUTIONS.”

       {¶16} In the sole assignment of error Appellant maintains the trial court erred in

denying his motion to vacate and resentence in accordance with Criminal Rule 32(B).

Appellant alleges he was never properly advised of his rights pursuant to Criminal Rule

32(B); therefore, he must be resentenced accordingly.

       {¶17} As set froth in the Statement of Procedural History above, Appellant was

sentenced on December 22, 2007. On two occasions this Court found the sentencing

entries relative to Appellant's sentence did not constitute final appealable orders. On

December 28, 2010, the trial court issued an amended entry clarifying the terms of

postrelease control and indicating Appellant had been found guilty of the charges and

the manner of conviction. This Court found further arguments barred by the doctrine of

res judicata. Appellant filed an appeal to this Court. As set forth above, this Court held,
Richland County, Case No. 13CA47                                                          6

       {¶18} "Applying Lester, we find appellant's convictions were upheld on direct

appeal by this Court in State v. Miley, 5th Dist. Nos. 09CA39 and 09CA40, 2009–Ohio–

4011 and the Ohio Supreme Court declined jurisdiction. The convictions were based

upon the entries issued by the trial court on February 13, 2009. Upon review, we find

the entry in the underlying case fully complied with the requirements of Crim.R. 32(C),

and as set forth in the Lester syllabus. Appellant's 2009 judgment of conviction was

final, and any new challenges to it are barred by the doctrine of res judicata. The nunc

pro tunc entry by its very nature applies retrospectively to the judgment it corrects and is

not a new final order from which a new appeal may be taken to again challenge the

underlying conviction.

       {¶19} "Although Appellant does not challenge on appeal the modified terms of

postrelease control, we note that the doctrine of res judicata still applies to all other

aspects of the conviction, including the determination of guilt. State v. Fischer, 128 Ohio

St.3d 92, 2010–Ohio–6238."

       {¶20} As such, we find Appellant's arguments raised in the motion to vacate and

resentence an attempt to circumvent his prior invocation of the appellate process. We

again find his present arguments barred by the doctrine of res judicata.

       {¶21} This case is factually distinguishable from State v. Hunter, 2010-Ohio-657,

cited by Appellant, as Appellant was represented by counsel at the time of sentencing

herein, has failed to fully demonstrate the trial court did not comply with Criminal Rule

32 at the time he was sentenced, and Appellant has previously directly appealed his

sentence to this Court.
Richland County, Case No. 13CA47                                                7


      {¶22} Accordingly, the May 2, 2013 Judgment Entry denying Appellant's motion

to vacate and resentence is affirmed.

By: Hoffman, P.J.

Wise, J. and

Baldwin, J. concur

                                        ___________________________________
                                        HON. WILLIAM B. HOFFMAN


                                        ___________________________________
                                        HON. JOHN W. WISE


                                        ___________________________________
                                        HON. CRAIG R. BALDWIN
Richland County, Case No. 13CA47                                                      8


           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
MILTON C. MILEY                           :
                                          :
       Defendant-Appellant                :         Case No. 13CA47


       For the reasons stated in our accompanying Opinion, the May 2, 2013 Judgment

Entry of the Richland County Court of Common Pleas is affirmed. Costs to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
