[Cite as State v. Walker, 2011-Ohio-4005.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P. J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 10 CA 116
GARY D. WALKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 2009 CR 0052-D


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        August 10, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KEN EGBERT, JR.                                GARY D. WALKER, PRO SE
SPECIAL PROSECUTING ATTORNEY                   RICHLAND CORRECTIONAL INST.
One Government Center, #1340                   1001 Olivesburg Road
Toledo, Ohio 43604                             Mansfield, Ohio 44901
Richland County, Case No. 10 CA 116                                                        2

Wise, J.

       {¶1}   Appellant Gary D. Walker appeals from an amended felony sentencing

entry rendered by the Richland County Court of Common Pleas. The relevant facts

leading to this appeal are as follows.

       {¶2}   On June 2, 2009, after the commencement of a jury trial in the Richland

County Court of Common Pleas, appellant indicated he would change his pleas to forty-

seven felony counts, including engaging in a pattern of corrupt activity (“EPCA”),

forgery, and theft, with forfeiture specifications. The trial court thereupon conducted a

change of plea hearing outside the presence of the jury and accepted appellant’s pleas

of guilty. The trial court then sentenced appellant to a total of twelve years in prison. The

sentencing entry included an order that appellant serve three years of mandatory post

release control (“PRC”). See Sentencing Entry, June 2, 2009, at 2.

       {¶3}   Appellant filed a notice of appeal from his 2009 convictions and sentence

on July 1, 2009. However, on September 24, 2009, this Court dismissed the appeal

upon appellant’s motion.

       {¶4}   On September 28, 2009, appellant filed a pro se “motion for sentencing,”

claiming that the trial court had not properly advised him of the consequences of post-

release control violations.

       {¶5}   On December 7, 2009, appellant filed an “urgent motion to take judicial

notice,” apparently seeking resentencing.

       {¶6}   On December 30, 2009, the trial court conducted a video conference

hearing to notify appellant of his PRC obligations. The next day, December 31, 2009,
Richland County, Case No. 10 CA 116                                                           3


appellant filed a motion to withdraw guilty pleas, citing Crim.R. 32.1. He subsequently

added a memorandum in support thereof.

        {¶7}   On January 14, 2010, appellant abruptly filed a motion to dismiss counts

two through thirty-four of his indictment, alleging lack of jurisdiction of the grand jury.

        {¶8}   On March 24, 2010, the trial court denied appellant’s motion to withdraw

guilty pleas. Appellant did not appeal the denial.

        {¶9}   On April 12, 2010, appellant filed a “motion for final judgment,” asserting

that the trial court had not disposed of the odd-numbered counts in the indictment (three

through forty-three) as well as two other counts in the indictment (forty-four and forty-

six).

        {¶10} In the meantime, the trial court had not issued a written judgment entry

addressing the results of the PRC video hearing of December 30, 2009. Accordingly, on

July 28, 2010, the trial court issued a judgment entry stating, inter alia, that appellant

“has been notified personally of the consequences of a post-release control violation

pursuant to R.C. 2929.19(B)(3)(e) ***.”

        {¶11} On August 27, 2010, appellant filed a “motion for re-sentencing to correct

void sentence.”

        {¶12} On September 7, 2010, the trial court filed an amended sentencing entry.1

This entry was virtually identical to the sentencing entry of June 2, 2009, but it specified,

per the agreement of the parties at the 2009 change of plea hearing, that each odd-

numbered count (three through forty-three) was merged into its preceding even-

1
    Appellant maintains that the court issued the amended entry in response to a
pending complaint for a writ of mandamus before this Court at the time. We dismissed
the complaint as moot on November 15, 2010. See State ex rel. Walker v. DeWeese,
Richland App.No. 10CA85, 2010-Ohio-5544.
Richland County, Case No. 10 CA 116                                                4


numbered count. Count forty-four was dismissed, while count forty-six was merged into

count forty-five.

       {¶13} On September 28, 2010, appellant filed a notice of appeal of the

September 7, 2010 amended sentencing entry. He herein raises the following seven

Assignments of Error:

       {¶14} “I. THE TRIAL COURT DENIED GARY D. WALKER HIS RIGHT TO DUE

PROCESS AND EQUAL PROTECTION IN VIOLATION OF THE FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10,

ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT ACCEPTED UNKNOWING,

UNINTELLIGENT, AND INVOLUNTARY GUILTY PLEAS IN VIOLATION OF CRIMINAL

RULE 11 & THE OHIO SUPREME COURT HOLDING IN STATE V. SARKOZY,117

OHIO ST.3D 86, 2008-OHIO-509, 881 N.E.2D 1224.

       {¶15} “II. THE TRIAL COURT DENIED GARY D. WALKER HIS RIGHT TO THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT ACCEPTED

UNKNOWING,           UNINTELLIGENT,   AND   INVOLUNTARY         GUILTY   PLEAS    IN

VIOLATION OF CRIMINAL RULE 11, WHEN THE COURT FAILED TO ADVISE

APPELLANT OF THE PENALTY(S) APPLICABLE TO ENGAGING IN A PATTERN OF

CORRUPT ACTIVITY.

       {¶16} “III.    THE   TRIAL   COURT   VIOLATED    CRIM.    R.   11, WHEN     IT

COMPLETELY FAILED TO ADVISE MR. WALKER OF THE MAXIMUM PENALTY IN

RELATION TO THE ODD NUMBER COUNTS OF HIS INDICTMENT THREE (3), FIVE

(5), SEVEN (7), VIOLATING APPELLANT'S RIGHTS TO THE FIFTH, SIXTH, AND
Richland County, Case No. 10 CA 116                                    5


FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND SECTIONS 10

AND 16 OF ARTICLE ONE OF THE OHIO CONSTITUTION.

      {¶17} “IV. THE COURT COMMITTED PREJUDICIAL ERROR, WHEN THE

COURT FAILED TO COMPLY WITH CRIMINAL RULE 11, THEN SUBSEQUENTLY

SENTENCING APPELLANT TO THE OFFENSE(S) OF THEFT AND UTTERING.

THESE ARE ALLIED OFFENSES OF SIMILAR IMPORTS (SIC), THEREBY

VIOLATING APPELLANT (SIC) FIFTH, SIXTH, AND FOURTEENTH AMENDMENT TO

THE U.S. CONSTITUTION, AND THE SAME OF THE OHIO CONSTITUTION.

      {¶18} “V. TRIAL COUNSEL (SIC) PERFORMANCE WAS INEFFECTIVE,

THEREBY VIOLATING APPELLANT'S SIX (SIC) AMENDMENT TO THE U.S.

CONSTITUTION AND THE SAME OF THE OHIO CONSTITUTION.

      {¶19} “VI. THE COURT VIOLATED CRIMINAL RULE 43, WHEN COURT

IMPOSE (SIC) SANCTIONS IN JUDGMENT ENTRY, BUT FAILS TO IMPOSE AT

ORAL SENTENCING HEARING.

      {¶20} “VII. THE TRIAL COURT ABUSED ITS DISCRETION BY SENTENCING

APPELLANT     TO   SEVEN    YEARS     IMPRISONMENT   AND   THREE   YEARS

MANDATORY POST-RELEASE CONTROL, IN RELATION TO THE OFFENSE OF

ENGAGING IN A PATTERN OF CORRUPT ACTIVITY, WITHOUT CONSIDERING

THE STATUTORY PENALTY(S) UNDER R.C. § 2923.32, THEREBY VIOLATING

APPELLANT'S RIGHT UNDER THE FOURTEENTH AMENDMENT TO THE U.S.

CONSTITUTION AND THE SAME OF OHIO CONSTITUTION.”
Richland County, Case No. 10 CA 116                                                       6


                                 I., II., III., IV., V., VI., VII.

       {¶21} In his present Assignments of Error, appellant essentially raises three

claims regarding (1) acceptance of his guilty pleas, (2) ineffective assistance of trial

counsel, and (3) aspects of his sentence. However, in light of the procedural history of

this case and the spate of appellant’s motions filed after his 2009 conviction and

sentences, we find none of these claims are properly before this Court.

       {¶22} We first note that appellant, having voluntarily dismissed his direct appeal

in 2009, chose to challenge his guilty pleas by filing a motion under Crim.R. 32.1 and

State v. Sarkozy, 117 Ohio St.3d 86, 881 N.E.2d 1224, 2008–Ohio–509. Said motion

was separately denied by judgment entry on March 24, 2010. At that point, the denial of

said post-sentence Crim.R. 32.1 motion to withdraw plea constituted a final appealable

order. See, e.g., State v. Damron, Scioto App.No. 10CA3375, 2011-Ohio-165, ¶ 7

(additional citations omitted). As noted in our recitation of facts, appellant did not appeal

therefrom. Likewise, the trial court had dealt with appellant’s post-release control claims

via a hearing (December 30, 2009) and judgment entry (July 28, 2010), from which

appellant again did not appeal. Furthermore, the amended sentencing entry of

September 7, 2010, from which appellant has appealed herein, does not open the door

to a new round of direct appeal challenges to his 2009 convictions and sentences. The

purpose of the amended sentencing entry was to clarify, at appellant’s insistence, the

issue of merger regarding a number of the counts. Because this amended entry was

issued solely to memorialize additional aspects of the plea agreement concerning

merger of offenses, we find it to be in the nature of a nunc pro tunc sentencing entry.

However, nunc pro tunc entries generally do not extend the time in which to appeal. See
Richland County, Case No. 10 CA 116                                                    7


Pugh Shows, Inc. v. Pugh, Fairfield App.No. 6-CA-91, 1991 WL 302426, citing State v.

Shinkle (1986), 27 Ohio App.3d 54.

      {¶23} Accordingly, we hold the issues raised by appellant in the present appeal

are unreviewable by this Court under the doctrine of res judicata. Appellant’s First,

Second, Third, Fourth, Fifth, Sixth, and Seventh Assignments of Error are overruled.

      {¶24} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Richland County, Ohio, is hereby affirmed.



By: Wise, J.

Delaney, P. J., and

Farmer, J., concur.

                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
JWW/d 721
Richland County, Case No. 10 CA 116                                            8


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




STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
GARY D. WALKER                            :
                                          :
       Defendant-Appellant                :         Case No. 10 CA 116




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

judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________


                                          ___________________________________


                                          ___________________________________

                                                             JUDGES
