[Cite as State v. Walker, 2017-Ohio-8566.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.
-vs-
                                                  Case No. 17-CA-32, 17-CA-53
GARY D. WALKER

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Richland County Common
                                               Pleas Court, Case No. 2009CR0052D


JUDGMENT:                                      Affirmed

DATE OF JUDGMENT ENTRY:                        November 13, 2017

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

GARY BISHOP                                    GARY D. WALKER, PRO SE
Prosecuting Attorney,                          Inmate No. A554324
Richland County, Ohio                          Richland Correctional Institution
                                               1001 Olivesburg Road
By: JOSEPH C. SNYDER                           Mansfield, Ohio 44901
Assistant Prosecuting Attorney
38 South Park Street, Second Floor
Mansfield, Ohio 44902
Richland County, Case No. 17-CA-32, 17-CA-53                                                2

Hoffman, J.


       {¶1}   Defendant-appellant Gary D. Walker appeals the judgment entered by the

Richland County Common Pleas Court overruling his request for waiver of court costs

and overruling his request for waiver of restitution in the amount of $20,000, but granting

the motion in the amount of $12,538. Appellee is the state of Ohio.

                                  STATEMENT OF THE CASE1

       {¶2}   This case arose from a scheme in which appellant directed others to cash

forged federal stimulus checks at Wal–Marts throughout Ohio. On June 2, 2009, after the

commencement of a jury trial in the Richland County Common Pleas Court, Appellant

pled guilty to forty-seven felony counts, including engaging in a pattern of corrupt activity,

forgery, and theft. He was sentenced to an aggregate term of imprisonment of twelve

years, and ordered to pay restitution in the amount of $32,538.

       {¶3}   On March 15, 2016, the U.S. District Court for the Southern District of Ohio,

Western Division, granted Appellant a conditional writ of habeas corpus, ordering

Appellant to be released unless he was granted a new direct appeal of the Richland

County conviction, with appointed counsel, within 180 days. Walker v. Warden, Lake Erie

Correctional Institution, S.D.Ohio No. 1:13cv159 (Mar. 15, 2016).             We reopened

Appellant's direct appeal on April 12, 2016.

       {¶4}   Appellant assigned eight errors on the reopened appeal. We vacated the

trial court orders to pay court costs and restitution, and remanded the case to the trial

court for the limited purposes of 1) allowing Appellant to move the court to waive payment



1
 A rendition of the facts underlying Appellant’s criminal convictions is unnecessary for our
disposition of this appeal.
Richland County, Case No. 17-CA-32, 17-CA-53                                              3


of court costs, and 2) permitting the trial court to consider Appellant's present and future

ability to pay $32,538 in restitution. State v. Walker, 5th Dist. Richland No. 09CA88, 2016-

Ohio-8615, ¶ 62. In all other respects we affirmed Appellant’s convictions and sentences.

       {¶5}   The trial court held a hearing on March 13, 2017, on the issue of restitution

and court costs. Following the hearing, the trial court amended restitution from $32,538

to $20,000, and left the order to pay court costs in place. Appellant filed a writ of

mandamus with this Court seeking a final appealable order in compliance with State v.

Baker, 119 Ohio St.3d 197, 893 N.E.2d 163, 2008-Ohio-3330. Appellant also filed a direct

appeal from the judgment entry in Appellate Case Number 17CA32.

       {¶6}   The trial court issued a nunc pro tunc sentencing entry on May 31, 2017,

incorporating its restitution order of March 29, 2017, with its 2009 sentencing entry. The

writ of mandamus was thereafter dismissed, and Appellant filed a notice of appeal from

the May 31, 2017 entry in Appellate Case Number 17CA53. We consolidated Case

Numbers 17CA32 with 17CA53, with Case Number 17CA53 controlling.

       {¶7}   It is from the May 31, 2017 entry Appellant prosecutes this appeal,

assigning the following as error:



              “I.   THE TRIAL COURT ERRED BY ISSUING A NON-FINAL

       APPEALABLE ORDER [THE MARCH 29, 2017 ORDER] WHICH

       DEPRIVED        THIS      APPELLATE        COURT        SUBJECT-MATTER

       JURISDICTION OVER THE APPEAL IN STATE V. WALKER, RICHLAND

       APP. NO. 2017-CA-0032.
Richland County, Case No. 17-CA-32, 17-CA-53                                       4


            “II.   THE TRIAL COURT VIOLATED THE CONFRONTATION

      CLAUSE TO THE FIFTH AMENDMENT OF THE UNITED STATES

      CONSTITUTION, THE DUE PROCESS CLAUSE TO THE FOURTEENTH

      AMENDMENT OF THE UNITED STATES CONSTITUTION AND CRIM. R.

      43(A) BY IMPOSING RESTITUTION AND COURT COST IN THE MAY 31,

      2017 NUNC PRO TUNC SENTENCING ENTRY WITHOUT APPELLANT

      BEING PRESENT.

            “III. THE TRIAL COURT COMPLETELY DEPRIVED APPELLANT

      EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH

      AMENDMENT TO THE UNITED STATES CONSTITUTION BY IMPOSING

      RESTITUTION AND COURT COST IN THE MAY 31, 2017 NUNC PRO

      TUNC SENTENCING ENTRY WITHOUT COUNSEL BEING PRESENT.

            “IV.   THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY

      CLAUSE TO THE FIFTH AMENDMENT OF THE UNITED STATES

      CONSTITUTION BY INCREASING APPELLANT’S SENTENCES ON

      COUNTS 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 45, 46,

      47 AND 48, WITH RESTITUTION AFTER APPELLANT COMPLETED HIS

      SENTENCES FOR THOSE COUNTS.

            “V.    THE TRIAL COURT ERRED IN FAILING TO HOLD AN

      EVIDENTIARY HEARING IN COMPLIANCE WITH R.C. 2929.28(A)(1)

      WHEN APPELLANT DISPUTED THE AMOUNT OF RESTITUTION.

            “VI. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF

      LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED
Richland County, Case No. 17-CA-32, 17-CA-53                       5


      STATES CONSTITUTION BY FAILING TO AFFORD APPELLANT

      NOTICE AND THE OPPORTUNITY TO BE HEARD REGARDING

      EVIDENCE THE COURT USED TO MODIFY AND CALCULATE THE

      RESTITUTION SENTENCE IN THE MAY 31, 2017 NUNC PRO TUNC

      SENTENCING ENTRY.

            “VII. THE TRIAL COURT ERRED IN SENTENCING APPELLANT

      TO CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE

      JUDICIAL FINDINGS MANDATED BY R.C. 2929.14(C)(4).

            “VIII. THE TRIAL COURT IMPOSED SENTENCES CONTRARY TO

      LAW UNDER R.C. 2929.41(A) BY ORDERING THE SENTENCES IN THE

      INSTANT CASE TO RUN CONSECUTIVE TO THE SENTENCES

      IMPOSED IN APPELLANT’S UNRELATED CASES.

            “IX.   THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY

      CLAUSE TO THE FIFTH AMENDMENT TO THE UNITED STATES

      CONSTITUTION BY FAILING TO CREDIT APPELLANT FOR TIME

      SERVED IN PRISON AND BY FAILING TO INCLUDE THOSE DAYS IN

      THE MAY 31, 2017 NUNC PRO TUNC SENTENCING ENTRY.

            “X.    THE TRIAL COURT ERRED BY FAILING TO HOLD A

      HEARING TO DETERMINE THE AMOUNT OF COURT COST TO BE

      IMPOSED IN COMPLIANCE WITH R.C. 2923.32(B)(2)(c).

            “XI. THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY

      WITH R.C. 2947.23(a)(1)(i).”
Richland County, Case No. 17-CA-32, 17-CA-53                                                6


        {¶8}   We note, this matter comes before this Court pursuant to the accelerated

calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule

12(A) for the statement of the reason for the court's decision as to each error to be in brief

and conclusionary form.

                                                  I.

        {¶9}   In his first assignment of error, Appellant argues the court erred in issuing

an entry amending the amount of restitution which did not constitute a final, appealable

order pursuant to Crim. R. 32(C). As discussed in the Statement of the Case, the trial

court issued a nunc pro tunc sentencing order, including the revised amount of restitution.

The appeals from both entries have been consolidated, and this assignment of error is

moot.

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

                                               II., III.

        {¶11} In his second and third assignments of error, Appellant argues the court

erred in issuing a nunc pro tunc sentencing entry outside his presence, and without

affording him the right to counsel.

        {¶12} The trial court held a hearing on restitution and court costs on March 13,

2017, at which Appellant was present and represented by counsel. The court issued an

order modifying restitution in accordance with the evidence presented at this hearing,

which the court later incorporated into a complete sentencing entry via the nunc pro tunc

entry filed May 31, 2017.

        {¶13} The remedy for failure to comply with Crim.R. 32(C) is a revised sentencing

entry rather than a new hearing. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236,
Richland County, Case No. 17-CA-32, 17-CA-53                                               7


2011-Ohio-235, 943 N.E.2d 535, ¶ 18 (2011). Appellant was not entitled to a second

hearing at which he had the right to be present and the right to counsel before the trial

court issued a nunc pro tunc sentencing entry.

       {¶14} The second and third assignments of error are overruled.

                                                IV.

       {¶15} In his fourth assignment of error, Appellant argues the court violated the

Double Jeopardy clause of the Fifth Amendment by adding restitution to his sentence for

counts on which he had completed his prison sentence.

       {¶16} The judgment did not increase Appellant’s sentence for counts on which

Appellant had finished serving his prison sentence by adding restitution to his sentence.

Restitution was always a part of Appellant’s sentence. Rather, Appellant challenged in

Case No. 09CA88 the court’s failure to consider his present and future ability to pay

restitution, and we remanded to the court for further proceedings on the issue of restitution

at Appellant’s request. The trial court did not violate Double Jeopardy by imposing a

lower amount of restitution than the amount originally ordered.

       {¶17} The fourth assignment of error is overruled.

                                                 V.

       {¶18} In his fifth assignment of error, Appellant argues the court erred in failing to

hold an evidentiary hearing on the amount of restitution based on evidence of Wal-Mart’s

actual economic loss. He argues an evidentiary hearing was required in accordance with

R.C. 2929.18(A)(1), which provides in pertinent part:
Richland County, Case No. 17-CA-32, 17-CA-53                                              8


              If the court decides to impose restitution, the court shall hold an

       evidentiary hearing on restitution if the offender, victim, or survivor disputes

       the amount of restitution. If the court holds an evidentiary hearing, at the

       hearing the victim or survivor has the burden to prove by a preponderance

       of the evidence the amount of restitution sought from the offender.



       {¶19} The remand in the instant case was limited strictly to Appellant’s ability to

pay restitution, and not for the purpose of allowing Appellant to dispute the amount of

restitution sought by the victim:



              In the instant case, we are unable to determine from the record that

       the trial court made any inquiry into appellant’s ability to pay restitution

       because the record is devoid even of any reference to a pre-sentence

       investigation. We are thus constrained to vacate the restitution order and

       remand this matter to the trial court for consideration of appellant’s present

       and future ability to pay. Moody, supra, 2010–Ohio–3272, at ¶ 55. A review

       of the record does not demonstrate the trial court complied with R.C.

       2929.19(B)(6). State v. Woods, 5th Dist. Licking No. 12–CA–19, 2013–

       Ohio–1136, ¶ 51. See also, State v. Caudill, 5th Dist. Ashland No. 03–COA–

       031, 2004–Ohio–2803.

              Appellant’s eighth assignment of error is sustained to the extent that

       the orders to pay court costs and restitution are vacated. The matter is

       remanded to the trial court for the limited purposes of 1) allowing appellant
Richland County, Case No. 17-CA-32, 17-CA-53                                             9


      to move the court to waive payment of court costs, and 2) permitting the trial

      court to consider appellant’s present and future ability to pay $32,538 in

      restitution. Joseph, supra, 2010–Ohio–954 at ¶ 23; Sizemore, supra, 2016–

      Ohio–1529 at 36.



      {¶20} State v. Walker, 5th Dist. Richland No. 09CA88, 2016-Ohio-8615, ¶ 61-62.

      {¶21} The fifth assignment of error is overruled.

                                               VI.

      {¶22} Appellant argues the court erred in failing to give him notice and an

opportunity to be heard on the evidence the court used to modify restitution in the May

31, 2017, nunc pro tunc judgment of sentencing.

      {¶23} In the March 29, 2017 order on Appellant’s request to waive court costs and

restitution, the trial court made findings based on the March 13, 2017 evidentiary hearing

regarding the amount of restitution. The trial court found Appellant to be above average

in intellectual and tactical ability based on the scheme to forge and cash federal stimulus

checks at Walmart stores throughout Ohio. The court noted almost none of the fruits of

his thefts were recovered, and Appellant was able to hire counsel to represent him on his

earlier appeal. The trial court found Appellant’s testimony that an unnamed friend of his

talked counsel into doing the appeal to not be credible, and believed counsel did not work

for free. The court further noted Appellant received his GED and attended college while

in prison, is certified in graphic arts and design, was an entrepreneur prior to his prison

sentence, and at least one Cleveland attorney had shown interest in employing him after

his release from prison. The court thus concluded Appellant had a future ability to pay
Richland County, Case No. 17-CA-32, 17-CA-53                                               10


when released from prison, but determined the restitution should be capped at

$20,000.00.

       {¶24} The amount of restitution in the May 31, 2017 judgment was $20,000, in

accordance with the more detailed entry of March 29, 2017, for which Appellant was

afforded notice and an opportunity to be heard.

       {¶25} The sixth assignment of error is overruled.

                                             VII., VIII.

       {¶26} In his seventh assignment of error, Appellant argues the court erred in

imposing consecutive sentences without making the judicial findings mandated by R.C.

2929.14(C)(4). In his eighth assignment of error, Appellant argues the court erred in

ordering the sentences in the instant case to run consecutive to his sentences imposed

in his unrelated cases.

       {¶27} The instant case was not remanded for resentencing. The remand was

limited to Appellant’s present and future ability to pay restitution, and for consideration of

his request to waive costs. Under the doctrine of res judicata, a final judgment of

conviction bars a convicted defendant who was represented by counsel from raising and

litigating in any proceeding, other than a direct appeal from the judgment, any defense or

lack of due process that was raised or could have been raised at the trial which resulted

in the judgment of conviction, or on appeal from that judgment. State v. Szefcyk, 77 Ohio

St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus.             We find Appellant’s claims

regarding consecutive sentencing to be barred by res judicata.

       {¶28} The seventh and eighth assignments of error are overruled.
Richland County, Case No. 17-CA-32, 17-CA-53                                            11


                                               IX.

       {¶29} In his ninth assignment of error, Appellant argues the court failed to give

him credit for time served in the May 31, 2017 nunc pro tunc sentencing entry. He argues

the entry should have reflected the time served between the date of his original

sentencing and the date of resentence.

       {¶30} Appellant was not resentenced upon remand; rather, the court considered

solely the issues concerning restitution and costs which we directed the court to consider.

The trial court did nothing to modify the calculation of days Appellant was sentenced to

serve as part of his prison sentence, and his release date was in no way affected as a

result of the proceedings on remand or as a result of the May 31, 2017 entry. Therefore,

the entry need not reflect the portion of his sentence previously served.

       {¶31} The ninth assignment of error is overruled.

                                             X., XI.

       {¶32} In his tenth assignment of error, Appellant argues pursuant to R.C.

2923.32(B)(2)(c) the trial court was required to hold a hearing to determine the amount of

court costs. In his eleventh assignment of error, he argues the court erred in failing to

inform him, as required by R.C. 2947.23(A)(1)(i) that community service could be imposed

if he failed to pay court costs.

       {¶33} The remand in the instant case was to allow Appellant to request a waiver

of costs. The trial court was not required to hold a hearing on the amount of costs, nor

was the court required to inform him at this juncture of the consequences of his failure to

pay costs.

       {¶34} The tenth and eleventh assignments of error are overruled.
Richland County, Case No. 17-CA-32, 17-CA-53                                      12


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

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
