[Cite as State v. Bates, 2012-Ohio-4360.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. Patricia A. Delaney, P.J.
                                               :       Hon. W. Scott Gwin, J.
                          Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case Nos.     2012-CA-06
BRYAN BATES                                    :                     2012-CA-10
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeals from the Guernsey County
                                                   Court of Common Pleas, Case No. 07-CR-
                                                   117



JUDGMENT:                                          Affirmed



DATE OF JUDGMENT ENTRY:                            September 24, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DANIEL G. PADDEN                                   BRYAN BATES PRO SE
Guernsey County Prosecuting Attorney               #577218
139 West 8th Street                                Box 5500
Box 640                                            Chillicothe, OH 45601
Cambridge, OH 43724
[Cite as State v. Bates, 2012-Ohio-4360.]


Gwin, J.

        {¶1}     Defendant-appellant Bryan Bates appeals two judgments of the Court of

Common Pleas, of Guernsey County, Ohio which we have consolidated. Appellant

assigns three errors:

        {¶2}     “I. THE TRIAL COURT ERRED AS A MATTER OF LAW, ABUSED ITS

DISCRETION WHEREAS,THE TRIAL COURT FAILED TO CONDUCT AN IN CAMERA

INSPECTION TO DETERMINE IF INCONSISTENT STATEMENTS WERE PROVIDED

TO THE GRAND JURY IN COMPARISON WITH THE TESTIMONY PROVIDED AT

TRIAL.

        {¶3}     “II. THE TRIAL COURT ABUSED ITS DISCRETION BY DETERMINIING

THAT HOUSE BILL 86 IS NOT RETROACTIVE.

        {¶4}     “III. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS,

THE COURT DENIED APPELLANT’S PETITION FOR POST CONVICTION RELIEF

PURSUANT TO ORC 2953.21.”

        {¶5}     The record indicates on June 29, 2007, appellant was indicted on twelve

counts of pandering sexually oriented material involving a minor in violation of R.C.

2907.322 and thirty counts of illegal use of a minor in nudity oriented material or

performance in violation of R.C. 2907.323. The charges arose after an international

investigation involving the United States and Canada into child pornography on the

Internet.

        {¶6}     A jury convicted appellant of all charges, and on April 18, 2008, the trial

court sentenced appellant to an aggregate term of thirteen years in prison.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                    3


       {¶7}    On direct appeal, appellant challenged the denial of his motion to

suppress testimony of the State’s expert in computer forensics, and raised the issues of

ineffective assistance of counsel, and manifest weight and sufficiency of the evidence.

This court affirmed appellant’s convictions in State v. Bates, Fifth District No. 08CA15,

2009-Ohio-275 (Bates I).

       {¶8}    On April 26, 2011, appellant filed a motion to correct his sentence

pursuant to Crim. R. 32 (C). On May 23, 2011, the trial court amended the judgment

entry of sentence to specify appellant was convicted by a jury of his peers. Two weeks

later, appellant filed a motion to correct the amended judgment entry to comport with

Crim. R. 32 (C). The trial court directed appellant to submit a proposed draft for an

entry of clarification.

       {¶9}    While the above motion to correct the sentence was pending, appellant

filed another motion to correct the sentence, arguing the charges were allied offenses of

similar import. The court overruled that motion, finding it could have been or should

have been raised on direct appeal.

       {¶10} Subsequently appellant filed a proposed draft of the entry for clarification

as directed by the trial court. The court filed a judgment entry of sentence pursuant to

Civ. R. 60 (A), again sentencing appellant to thirteen years in prison. The trial court

overruled appellant’s motion for reconsideration of the allied offenses issue.

       {¶11} On November 21, 2011, appellant filed a motion for a hearing to correct

the sentence pursuant to R.C. 2929.14 and 2929.41 and State v. Foster, 109 Ohio St.

3d 1, 2006-Ohio-857. The trial court overruled the motion.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                      4


       {¶12} From the above appellant filed three appeals, which this court addressed

collectively in State v. Bates, 5th Dist. Nos. 11-CA-000016, 11-CA-000026, and 11-CA-

000033, 2012-Ohio-1080 (Bates II). Appellant raised a total of nineteen assignments of

error in the three appeals. This court affirmed all the trial court’s judgments, and noted

that some of the errors appellant raised were res judicata because appellant could have

raised the arguments in his direct appeal.         However, we addressed appellant’s

assignments of error regarding his sentence, finding that the judgment entries complied

with Crim. R. 32 (C) and State v. Baker, 119, Ohio St. 3d. 197, 2008-Ohio-3330, 893

N.E.2d 163.

       {¶13} While the three appeals were pending before this court, appellant filed a

motion for reconsideration and to correct the sentence in the trial court, which the court

overruled. The court also overruled a later motion to correct the sentence. Appellant

filed a notice of appeal on February 23, 2012, taken from the court’s overruling of his

most recent motion to correct the sentence.

       {¶14} On February 29, 2012, appellant filed a petition to vacate or set aside the

judgment or conviction or sentence. On March 5, 2012, we filed our opinion in Bates II.

The trial court overruled the petition to vacate or set aside the judgment of conviction or

sentence on March 14, 2012. In April 2012, appellant filed a notice of appeal from that

decision, which was originally assigned the case number 12-CA-10, but which we

subsequently consolidated with case number 12-CA-06. Those matters are before us

now.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                          5


                                                  I.

       {¶15} In his first assignment of error, appellant argues the trial court abused its

discretion in not conducting an in-camera inspection of the transcripts of the evidence

presented to the grand jury in his criminal case to determine whether the testimony

before the grand jury was inconsistent with testimony presented at trial.

       {¶16} Crim. R. 6(E) provides deliberations of the grand jury and the vote of the

grand jurors is not to be disclosed but disclosure of other matters occurring before the

grand jury may be disclosed if the court directs. The Rule provides matters may be

disclosed preliminarily to or in connection with a judicial proceeding, or when the

defendant has shown grounds may exist for a motion to dismiss the indictment because

of matters occurring before the grand jury.

       {¶17} In United States v. Proctor & Gamble Co., 356 U.S. 667, 78 Sup. Ct. 983,

2 L.Ed. 2d 1077 (1958), the United States Supreme Court found a trial court has

discretion to release grand jury transcripts when a defendant demonstrates a

particularized need such that the secrecy of the proceedings should be discretely and

limitedly lifted. In State v. Greer, 66 Ohio St. 2d 139, 420 N.E. 2d 982 (1981), the Ohio

Supreme Court found the defendant has demonstrated a particularized need when,

after a consideration of all the surrounding circumstances, the court finds it is probable

that failure to disclose the grand jury testimony will deprive the defendant of a fair

adjudication of the allegation placed at issue in the testimony presented at trial. Courts

have applied the same “particularized need” test for post-verdict requests for grand jury

transcripts as for requests made prior to or during trial. See, e.g., State v. Miller, 3d Dist.

No. 4-93-24, 1995 WL 9395 (January 11, 1995).
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                       6


         {¶18} Our standard of reviewing the trial court’s judgment is the abuse of

discretion standard. State v. Gondor, 112 Ohio St. 3d 377, 2006-Ohio-6679,860 N.E.2d

77. The Supreme Court has frequently held the term abuse of discretion indicates the

court’s attitude is unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio

St. 2d 151, 404 N.E. 2d 144 (1980).       Appellant directs us to the testimony of Agent

Cameron Bryant, Detective John Davis, and Detective Ron Pollock, arguing portions of

the testimony the officers variously gave in the affidavit submitted in support of the

search warrant, at the suppression hearing, and at trial are internally inconsistent, giving

rise to a particularized need to review their testimony before the grand jury.

         {¶19} Appellant argues Agent Bryant testified at trial regarding how images are

sent and received through the Internet and how an image is saved on a computer’s hard

drive.    Appellant asserts the testimony is not only inconsistent but also false and

misleading. Appellant raised the issue of the accuracy of the testimony in the context of

the motion to suppress in his direct appeal, Bates I at ¶¶ 23-55. He raised the issue

again in Bates II, which we found was res judicata. Bates II, ¶ 34. We find the present

question of the accuracy of the testimony is res judicata as well.

         {¶20} Appellant also argues Agent Bryant’s testimony was inconsistent

regarding the origin of the images.      Agent Bryant testified he believed the images

originated from the Internet. Thereafter, he testified the images came either from a

website or from someone who sent the images with the consent of the user, by which

he meant appellant. Agent Bryant testified he could not determine whether the images

were downloaded from a website or received from another user.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                       7


       {¶21} This issue is arguably res judicata as well because appellant could have

included it in his challenge to the affidavits supporting the search warrant and to the

manifest weight in Bates I. Assuming arguendo the matter is not res judicata, we find

Agent Bryant’s testimony is not internally inconsistent.

       {¶22} Detective Pollock testified at the suppression hearing about how the

affidavit in support of the request for the search warrant was generated. Detective

Pollock testified he and Agent Bryant provided the information to the prosecutor so the

prosecutor’s office could draft the affidavit. Officer Pollock testified Detective Davis was

in court at the time and did not attend the prosecutor’s conference. At trial he testified

that the search warrant was obtained “with the assistance” of Detective Davis. We find

this testimony is not contradictory.      Detective Davis could provide assistance in

obtaining the information for the search warrant without actually being present with the

prosecutor when the affidavit was discussed and prepared.

       {¶23} Detective Davis testified at the suppression hearing and at trial. Detective

Davis testified he did not meet with the prosecutor to prepare the affidavit because he

had a court case and also another investigation.           Davis testified he and Detective

Pollock were partners and on most cases they either worked together or shared

information about a particular case. Detective Davis specifically testified he was not

present during the preparation of the search warrant. At trial, Davis testified he, Bryant,

and Pollock “put together” the information for a search warrant.

       {¶24} The State maintains it is clear the prosecutor actually drafted the affidavit

for the search warrant.    Detective Davis did not testify at trial that he was actually
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                      8


present. He did participate in the investigation and helped gather the information later

used to obtain the search warrant.

       {¶25} The questions regarding the affidavit in support of the search warrant are

res judicata. Assuming arguendo that the question of consistency between the affidavit

and the trial testimony is not res judicata, we find the testimony presented at the various

stages of the proceedings is consistent.

       {¶26} Finally, appellant argues there was a question as to who testified at the

grand jury hearing and what was presented. The computer forensic report was not

completed until after the indictment was issued. Appellant argues the indictment states

facts which could only have been retrieved using computer forensic procedures.

Appellant argues the question of how the facts were presented before the grand jury

must be answered.      We do not agree.       There is no showing that the information

contained in the indictment must have been gleaned by an expert computer forensic

examiner.

       {¶27} We find appellant has not demonstrated a particularized need for the

grand jury transcripts, and the trial court did not abuse its discretion in denying

appellant’s request for grand jury transcripts.

       {¶28} The first assignment of error is overruled.

                                                  II.

       {¶29} In his second assignment of error, appellant argues the trial court erred in

finding the provisions of House Bill 86 were not retroactive and did not apply to

appellant’s sentencing procedures.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                            9

       {¶30} Appellant argues the United States Supreme Court’s case of Oregon v.

Ice, 555 U.S. 160, 129 Sup. Ct. 711, 172 L. Ed. 2d 517, (2009), and the Supreme

Court’s decision in State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E. 2d 768

effectively reversed the Ohio Supreme Court’s decision in State v. Foster, supra. In

Hodge, the Supreme Court held Ice does not revive the disputed statutory provisions

the Foster decision invalidated, and that defendants sentenced by the trial judges who

did not apply those provisions are not entitled to re-sentencing. Hodge ¶ 5.

       {¶31} The Supreme Court agreed the General Assembly was no longer

constrained by Foster’s holdings and could, pursuant to Ice, enact statutory provisions

previously disapproved in Foster. ¶ 6. The General Assembly did reenact the provisions

after appellant’s sentencing. This court has found the provisions are not retroactive.

See, e.g., State v. Hobby, Fifth District No. 11COA41, 2012-Ohio-2420, citing State v.

Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E. 2d 124 and Hodge, supra.

       {¶32} Furthermore, in Bates II this court found the August 26, 2011 judgment

entry of sentencing complied with Crim. R. 32(C) and Baker, supra. Bates II at ¶42.

Because the judgment entry complied with the law in effect at the time of sentencing,

the court did not err in refusing to correct the sentence in accord with H.B. 86.

       {¶33} The second assignment of error is overruled.

                                                 III.

       {¶34} In his third assignment of error, appellant argues the trial court erred as a

matter of law in overruling his petition for post-conviction relief filed February 29, 2012.

       {¶35} R.C. 2953.21 provides a petition for post-conviction relief must be filed no

later than 180 days after the date on which the trial transcript is filed in the Court of
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                      10


Appeals in the direct appeal, or if no appeal is taken, no later than 180 days after the

expiration of the time for filing the appeal. Appellant pursued his direct appeal in 2008.

His petition was filed approximately three years later.

       {¶36} A trial court has no jurisdiction to hear an untimely petition for post-

conviction relief unless the movant meets requirements set out in R.C. 2953.23(A).

State v. Walker, 5th Dist. No. 12-CAA-020010, 2012-Ohio-3095, citing State v.

Demastry, 5th Dist. No. 05CA-14, 2005-Ohio-4962 ¶ 15. The exception set out in R.C.

2953.23 provides an untimely petition may be heard if the petitioner can show he was

unavoidably prevented from discovering the facts upon which the petition is based, and

also that but for Constitutional errors at trial, no reasonable fact finder would have found

the petitioner guilty.

       {¶37} Appellant argues the trial court omitted the phrase nunc pro tunc when

correcting the 2008 sentence on August 26, 2011. He asserts this gives rise to a new

right of appeal, noting that the judgment contains language stating it is a final

appealable order.

       {¶38} A trial court has specific limited jurisdiction to enter a corrected entry, but

not to enter a new sentencing entry unless directed to do so after appeal. The trial

court’s judgment entry must either be treated as a nunc pro tunc entry or a complete

nullity because the court lacked jurisdiction to enter a new judgment.

       {¶39} In State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, 958 N.E. 2d

142, the Ohio Supreme Court held a nunc pro tunc judgment entry issued for the sole

purpose of complying with the rule governing contents of a judgment of conviction by

correcting a clerical omission in a final judgment entry is not a new final order from
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                                   11

which a new appeal may be taken. Lester held when the substantive provisions of the

governing Rule are contained in judgment of conviction, the trial court's omission of how

the defendant's conviction was effected, i.e., the “manner of conviction,” does not

prevent the judgment of conviction from being an order that is final and subject to

appeal. Syllabi by the court, paragraphs 1, 2, and 3. The Supreme Court explained the

absence of the language required by Crim. R. 32 (C) indicating how the conviction was

effected does not deprive the appellant of any opportunity to appeal the conviction or

sentence. Id., at paragraph 17.

       {¶40} Appellant has not been deprived of the opportunity to appeal his

conviction and sentence, as evidenced by the fact these are his fifth and sixth appeals

to this court.

       {¶41} We find despite the language in the entry that it constitutes a final

appealable order, the sentencing entry to correct the sentence to reflect the

requirements of Crim. R. 32(C) does not constitute a new final appealable order.

       {¶42} We find appellant’s petition for post-conviction relief was not filed within

the statutory time and contained no showing the exception to the time limitation applied.

The trial court did not err in dismissing the petition.

       {¶43} The third assignment of error is overruled.
Guernsey County, Case No. 2012-CA-06 and 2012-CA-10                             12


      {¶44} For the foregoing reasons, the judgment of the Court of Common Pleas of

Guernsey County, Ohio, is affirmed.

By Gwin, J.,

Delaney, P.J., and

Edwards, J., concur


                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. PATRICIA A. DELANEY


                                         _________________________________
                                          HON. JULIE A. EDWARDS
WSG:clw 0822
[Cite as State v. Bates, 2012-Ohio-4360.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
BRYAN BATES                                       :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NOS.     2012-CA-06
                                                                        2012-CA-10


       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Guernsey County, Ohio, is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN


                                                      _________________________________
                                                      HON. PATRICIA A. DELANEY


                                                      _________________________________
                                                      HON. JULIE A. EDWARDS
