[Cite as State v. Pendleton, 2012-Ohio-3049.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :    JUDGES:
                                                :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :    Hon. Sheila G. Farmer, J.
                                                :    Hon. John W. Wise, J.
-vs-                                            :
                                                :    Case Nos.    11-CA-51
RAYMOND PENDLETON                               :                 11-CA-52
                                                :                 11-CA-53
        Defendant-Appellant                     :
                                                :    OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case Nos. 2008CR426 and
                                                     2008CR498


JUDGMENT:                                            Dismissed




DATE OF JUDGMENT:                                    June 29, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BRIAN T. WALTZ                                       ELIZABETH N. GABA
20 South Second Street                               1231 East Broad Street
4th Floor                                            Columbus, OH 43205
Newark, OH 43055
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                                    2

Farmer, J.

       {¶1}    On June 27, 2008, the Licking County Grand Jury indicted appellant,

Raymond Pendleton, on six counts of trafficking in drugs in violation of R.C. 2925.03,

two counts of possession of drugs in violation of R.C. 2925.11, and one count of

engaging in a pattern of corrupt activities in violation of R.C. 2923.32 (Case No.

08CR426). The indictment also included forfeiture and firearm specifications.

       {¶2}    On July 25, 2008, the Licking County Grand Jury indicted appellant on one

count of intimidation in violation of R.C. 2921.03 and one count of retaliation in violation

of R.C. 2921.05 (Case No. 08CR498).

       {¶3}    On January 14, 2009, appellant pled guilty to five of the trafficking counts

and the forfeiture specification in Case No. 08CR426, and entered an Alford no contest

plea on the retaliation count in Case No. 08CR498. The remaining counts and firearm

specification were to be dismissed. By judgment entries filed same date, the trial court

found appellant guilty of the retaliation count and sentenced appellant to an aggregate

term of eleven years in prison on all counts. On February 26, 2009, the trial court filed a

nunc pro tunc judgment entry to include a finding on the forfeiture specification.

       {¶4}    Appellant filed an appeal on March 27, 2009.

       {¶5}    On October 8, 2009, appellant filed with the trial court a motion for a final

appealable order.

       {¶6}    On October 26, 2009, this court dismissed appellant's appeal, finding the

order appealed from was not a final appealable order because pending counts were still

before the trial court.
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                                    3


        {¶7}   On October 30, 2009, appellee, the state of Ohio, nolled the remaining

counts.

        {¶8}   On July 16, 2010, the trial court denied appellant's motion for a final

appealable order. Appellant filed an appeal on July 29, 2010. By opinion and judgment

entry filed April 25, 2011, this court affirmed the trial court's decision, finding once the

remaining counts were disposed of, the sentencing entries became final appealable

orders. State v. Pendleton, Licking App. Nos. 10 CA 81 and 10 CA 82, 2011-Ohio-

2024.

        {¶9}   On May 12, 2011, appellant filed three appeals on the trial court's January

14, 2009 and February 26, 2009 judgment entries. These matters are now before this

court for consideration. Assignments of error are as follows:

                                             I

        {¶10} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY

ACCEPTING THE POLICE STACKING OF CRIMINAL CHARGES WHICH VIOLATES

R.C. §2935.03(A)(1), AND BY SENTENCING DEFENDANT CONSECUTIVELY BASED

ON THESE ILLEGALLY STACKED CHARGES."

                                             II

        {¶11} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY

ACCEPTING THE POLICE STACKING OF CRIMINAL CHARGES WHICH VIOLATES

DEFENDANT'S DUE PROCESS RIGHTS UNDER THE OHIO CONSTITUTION AND

THE 5TH AND 14TH AMENDMENTS AND VIOLATES HIS 8TH AMENDMENT

RIGHTS, AND BY SENTENCING DEFENDANT CONSECUTIVELY BASED ON

THESE UNFAIRLY STACKED CHARGES."
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                    4


                                       III

       {¶12} "THE COURT ERRED TO THE PREJUDICE OF DEFENDANT AND

DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED WHERE

THE COURT ACCEPTED GUILTY PLEAS IN THIS CASE GIVEN UNDER THE

INFLUENCE OF THE INEFFECTIVE ASSISTANCE OF COUNSEL."

                                       IV

       {¶13} "THE COURT ERRED TO THE PREJUDICE OF DEFENDANT BY

ACCEPTING DEFENDANT'S GUILTY PLEAS, WHEN THE GUILTY PLEAS GIVEN IN

THIS CASE WERE NOT KNOWINGLY, INTELLIGENTLY OR VOLUNTARILY GIVEN

DUE TO THE FACT THAT THE PLEA FORM FAILED TO ADVISE THE DEFENDANT

THAT    THE    MANDATORY       SENTENCE      IF   ALL    COUNTS   WERE   RUN

CONSECUTIVELY WAS 11 YEARS, IN VIOLATION OF DEFENDANT'S 5TH AND 6TH

AMENDMENT RIGHTS."

                                       V

       {¶14} "THE STATE FILED ALL ITS DISCOVERY IN THE COURT FILE, TO

PROVIDE MATERIALS TO THE COURT FOR THE COURT TO RELY ON IN

DETERMINING THE STATE'S AND DEFENDANT'S SUBSTANTIVE RIGHTS. THE

DISCOVERY RECORD IS PRESENTED TO THE COURT TO INVOKE ITS POWER

OR AFFECT ITS DECISIONS.        THE COURT ERRED TO THE PREJUDICE OF

DEFENDANT IN ACCEPTING THIS TACTIC OF THE STATE, BECAUSE THE STATE

HAD MATERIALLY PREJUDICED ANY AND ALL ADJUDICATIVE PROCEEDINGS IN

THE CASE FROM THE MOMENT IT FILED DISCOVERY."
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                                   5


                                             VI

         {¶15} "THE COURT ERRED TO THE PREJUDICE OF DEFENDANT WHEN

THE JUDGE DID NOT RECUSE, AS THE SEARCH WARRANT RETURN WAS

SIGNED BY THE JUDGE WHO PRESIDED OVER THE SUPPRESSION HEARING OF

THE INVENTORIED FRUITS OF THAT RETURN AND THIS SAME JUDGE

ULTIMATELY DECIDED THE SENTENCE OF THE DEFENDANT."

         {¶16} Appellant's six assignments of error claim the matter is ripe for his direct

appeal of his January 14, 2009/February 26, 2009 convictions.

         {¶17} Appellant first filed an appeal on March 27, 2009.        This court, upon

appellant's request for remand, dismissed the appeal, finding the order appealed from

was not a final appealable order because pending counts were still before the trial court.

         {¶18} On October 30, 2009, the trial court dismissed the outstanding counts.

With the perfection of a final appealable order on October 30, 2009, appellant pursued

an appeal in Case Nos. 10 CA 81 and 10 CA 82, citing the following assignments of

error:

         {¶19} "I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY SUMMARILY

DISMISSING THE APPELLANT'S 'MOTION FOR A FINAL APPEALABLE ORDER'.

THERE IS NO VALID 'FINAL ORDER' IN THE APPELLANT'S CRIMINAL CASES 426

AND 498."
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                               6


      {¶20} "II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY SUMMARILY

DISMISSING THE APPELLANT'S 'MOTION FOR A FINAL APPEALABLE ORDER'.

THE STATE DID NOT DISPOSE OF APPELLANT'S REMAINING COUNTS IN OPEN

COURT, THUS, THEY REMAIN PENDING AND THERE IS NO FINAL APPEALABLE

ORDER."

      {¶21} "III. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

APPELLANT'S SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND

ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION BY FAILING TO

PREPARE AND JOURNALIZE A FINAL ENTRY WITHIN THIRTY DAYS IN

VIOLATION OF RULE 7 OF THE RULES OF SUPERINTENDENCE, CIVIL RULE 58,

AND CRIMINAL RULE 32. APPELLANT IS ENTITLED TO BE DISCHARGED FROM

IMPRISONMENT."

      {¶22} "IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT

APPELLANT, AS IT WAS WITHOUT AUTHORITY TO SENTENCE THE DEFENDANT

TO FIVE YEARS OF POST RELEASE CONTROL, AS SUCH, SAID SENTENCE IS

VOID AS A MATTER OF LAW AND MUST BE CORRECTED UNDER R.C. §2929.191."

      {¶23} By opinion and judgment entry filed April 25, 2011, this court affirmed the

appeals. State v. Pendleton, Licking App. Nos. 10 CA 81 and 10 CA 82, 2011-Ohio-
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                                      7


2024. Appellant now argues he is perfecting his direct appeals. We find this position to

be in error for the following reasons.

       {¶24} With the dismissal of the outstanding counts on October 30, 2009, the

matter was ripe for direct appeal at that time.

       {¶25} "An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is***[a]n order that affects a substantial right in

an action that in effect determines the action and prevents a judgment[.]"               R.C.

2505.02(B)(1).

       {¶26} Despite having a final order on October 30, 2009, appellant did not file an

appeal until July 29, 2010 and argued in Case Nos. 10 CA 81 and 10 CA 82 (oral

argument heard on March 10, 2011) that there was no final appealable order, and also

argued a sentencing issue in Assignment of Error IV. This appeal was appellant's direct

appeal. After this court affirmed his convictions, appellant filed three appeals, claiming

to be appealing the original 2009 convictions.

       {¶27} Appellant cannot have two bites of the apple without requesting an App.R.

26(B) appeal or requesting a delayed appeal. Neither request was made to this court.

       {¶28} Upon review, we conclude we lack jurisdiction to decide the assignments

of error presented sub judice.
Licking County, Case Nos. 11-CA-51, 11-CA-52, 11-CA-53                         8


      {¶29} Based upon the foregoing, the appeals are dismissed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                         s/ Sheila G. Farmer________________



                                         s/ William B. Hoffman______________



                                         s/ John W. Wise__________________

                                                       JUDGES




SGF/sg 614
[Cite as State v. Pendleton, 2012-Ohio-3049.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                   :
                                                :
        Plaintiff-Appellee                      :        JUDGMENT ENTRY
                                                :
-vs-                                            :
                                                :
RAYMOND PENDLETON                               :        Case Nos.   11-CA-51
                                                :                    11-CA-52
        Defendant-Appellant                     :                    11-CA-53




        For the reasons stated in our accompanying Memorandum-Opinion, the appeals

are dismissed. Costs to appellant.




                                                s/ Sheila G. Farmer________________



                                                s/ William B. Hoffman______________



                                                s/ John W. Wise__________________

                                                             JUDGES
