[Cite as State v. Feagan, 2011-Ohio-2025.]


                                       COURT OF APPEALS
                                    RICHLAND 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 No. 10CA46
MARCO A. FEAGIN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Richland County Court of
                                              Common Pleas, Case No. 03-CR-86H


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       April 25, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JAMES J. MAYER, JR.                           MARCO A. FEAGIN, PRO SE
PROSECUTING ATTORNEY                          Mansfield Correctional Institution
RICHLAND COUNTY, OHIO                         A480-240
                                              Post Office Box 788
BY: BAMBI COUCH PAGE                          Mansfield, Ohio 44901
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 10CA46                                                         2

Hoffman, P.J.


      {¶1}   Defendant-appellant Marco A. Feagin appeals his conviction and sentence

in the Richland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                             STATEMENT OF THE FACTS AND CASE

      {¶2}   In the early morning hours of January 17, 2004, Appellant shot and killed

James Williams (“Williams”) at the American Legion on Harmon Avenue in Mansfield.

After the shooting, Williams was found lying on the floor near the disc jockey booth.

Paramedics transported Williams to the hospital where he died in surgery. The following

day, Appellant left the Mansfield area and went to Decatur, Illinois. Appellant eventually

turned himself into law enforcement officials on June 27, 2004.

      {¶3}   While Appellant was on the run, the Richland County Grand Jury indicted

him on charges resulting from the shooting. The grand jury charged him with one count

of murder, with a firearm specification; one count of possession of a firearm in a liquor

permit premises; and one count of possession of a weapon under disability. This matter

proceeded to a jury trial on December 13, 2004. The jury found Appellant guilty as

charged in the indictment.

      {¶4}   The trial court sentenced Appellant to fifteen years to life on the murder

count, to be served consecutive to the three-year sentence on the firearm specification.

The trial court also sentenced appellant to one year on the charge of possession of a

weapon in a liquor permit premises and one year for the charge of possession of a

weapon under disability, to be served concurrently with the murder sentence.

      {¶5}   Appellant timely appealed. Via Judgment Entry of February 15, 2006, this

Court affirmed Appellant’s conviction and sentence.
Richland County, Case No. 10CA46                                                           3


      {¶6}   Appellant filed a motion for resentencing on November 18, 2009, and a

motion to vacate void judgment and order new sentencing hearing on March 1, 2010.

Appellant filed a motion to dismiss all further proceedings due to unreasonable delay in

sentencing, which the trial court overruled via Judgment Entry of March 23, 2010. On

March 24, 2010, Appellant was resentenced for the purpose of imposing mandatory

post-release control. A new sentencing entry was filed on March 25, 2010, imposing

the original sentence in addition to a five year term of mandatory post-release control.

      {¶7}   Appellant now appeals, assigning as error:

      {¶8}   “I. DID THE TRIAL COURT ERRED [SIC] IN NOT DISMISSING THE

CASE DUE TO UNREASONABLE DELAY?

      {¶9}   “II.   DID   THE     PROSECUTOR         KNOWINGLY        USE     PERJURED

TESTIMONY?

      {¶10} “III. CONVICTION SHOULD BE REVERSED DUE TO INSUFFICIENCY

OF EVIDENCE AND A FAILURE OF THE STATE TO CARRY THE MANIFEST

WEIGHT OF THE EVIDENCE BURDEN?

      {¶11} “IV. DID THE PROSECUTOR COMMIT PROSECUTOR MISCONDUCT?”

                                                I.

      {¶12} In the first assignment of error, Appellant asserts the trial court erred in

denying his motion to dismiss for unreasonable delay in sentencing, pursuant to

Criminal Rule 32.

      {¶13} Criminal Rule 32 reads:

      {¶14} “(A) Imposition of sentence
Richland County, Case No. 10CA46                                                           4


       {¶15} “Sentence shall be imposed without unnecessary delay. Pending

sentence, the court may commit the defendant or continue or alter the bail. At the time

of imposing sentence, the court shall do all of the following:***”

       {¶16} However, Criminal Rule 32(A) does not apply to defendants who must be

resentenced due to a void original sentence.              State v. Brown, 2010-Ohio-4863.

Accordingly, Appellant’s first assignment of error is overruled.

                                           II., III. and IV.

       {¶17} Appellant’s remaining assignments of error assert common and

interrelated issues; therefore, we will address the arguments together.

       {¶18} The second, third and fourth assignments of error raise challenges to the

underlying conviction affirmed by this Court in our February 15, 2006 Judgment Entry.

These arguments were or could have been raised upon direct appeal and therefore are

barred from being raised now by res judicata.

       {¶19} Appellant asserts res judicata does not apply because this Court lacked

jurisdiction as no final appealable order existed at the time of his direct appeal pursuant

to State v. Baker, 119 Ohio St.3d, 2008-Ohio-3330. In State v. Loyer, 2010-Ohio-1181,

this Court held Baker does not apply retroactively to a case in which the direct appeal

has become final prior to the date Baker was decided.1

       {¶20} Based upon the above, Appellant’s second, third and fourth assignments

of error are overruled.




1
  As writer of this Opinion, I note I agree with the result but not the rationale of Loyer. I
reach the same result for the reasons set forth in my dissent in State v. Griffin, 2010-
Ohio-3517.
Richland County, Case No. 10CA46                                                 5


      {¶21} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. concur

Farmer, J. dissents

                                         s/ William B. Hoffman_________________
                                         HON. WILLIAM B. HOFFMAN


                                         ___________________________________
                                         HON. SHEILA G. FARMER


                                         s/ John W. Wise _____________________
                                         HON. JOHN W. WISE
Richland County, Case No. 10CA46                                                     6

Farmer, J., dissents

      {¶22} I respectfully dissent for the reasons set forth in this court's opinion in

State v. Griffin, Coshocton App. No. 09CA21, 2010-Ohio-3517, judgment vacated and

remanded, 127 Ohio St.3d 266, 2010-Ohio-5948, and this court's subsequent opinion

following remand, State v. Griffin, Coshocton App. No. 09CA21, 2011-Ohio-1638.




                                       s/ Sheila G. Farmer____________________
                                       HON. SHEILA G. FARMER
Richland County, Case No. 10CA46                                                     7


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


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MARCO A. FEAGIN                            :
                                           :
       Defendant-Appellant                 :         Case No. 10CA46


       For the reasons stated in our Opinion, the judgment of the Richland County Court

of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. SHEILA G. FARMER


                                           s/ John W. Wise______________________
                                           HON. JOHN W. WISE
