[Cite as State v. Nethers, 2011-Ohio-1317.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                    :      Hon. John W. Wise, J.
                                              :      Hon. Julie A. Edwards, J.
-vs-                                          :
                                              :
LOREN NETHERS                                 :      Case No. 10-CA-94
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common Pleas,
                                                  Case No. 06CR602



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           March 18, 2011




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DANIEL H. HUSTON                                  LOREN NETHERS, PRO SE
20 South Second Street                            Inmate No. 555-147
4th Floor                                         North Central Correctional Institution
Newrak, OH 43055                                  P.O. Box 1812
                                                  Marion, OH 43301
Licking County, Case No. 10-CA-94                                                        2

Farmer, P.J.

       {¶1}    On October 27, 2006, the Licking County Grand Jury indicted appellant,

Loren Nethers, on three counts of sexual battery in violation of R.C. 2907.03, three

counts of rape in violation of R.C. 2907.02, and eight counts of gross sexual imposition

in violation of R.C. 2907.05.

       {¶2}    A jury trial was held on May 1, 2007. At the close of the state's case, the

prosecutor moved to dismiss the three rape counts and one of the sexual battery

counts.   At the close of appellant's case, appellant made a Crim.R. 29 motion for

acquittal on the remaining counts. The trial court granted the motion as to one of the

sexual battery counts.

       {¶3}    The jury found appellant guilty of the remaining counts. By judgment entry

filed June 5, 2007, the trial court sentenced appellant to an aggregate term of twelve

years in prison. Appellant's conviction and sentence were upheld on appeal. See,

State v. Nethers, Licking App. No. 07 CA 78, 2008-Ohio-2679.

       {¶4}    On May 5, 2010, appellant filed a motion to vacate sentence/re-sentence

appropriately/motion for new trial. Appellant argued his sentence was void because the

verdict form did not contain the degree of the offense nor indicate that an aggravated

element was found pursuant to R.C. 2945.75, and his counsel was ineffective for failing

to rectify the void sentence. By judgment entry filed July 22, 2010, the trial court denied

the motion.

       {¶5}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:
Licking County, Case No. 10-CA-94                                               3


                                            I

      {¶6}   "THE TRIAL COURT ERRED BY NOT CORRECTING DEFENDANT-

APPELLANT'S VOID SENTENCE, VIOLATING HIS DUE PROCESS RIGHT."

                                           II

      {¶7}   "BECAUSE THE SENTENCE LACKS STATUTORY AUTHORITY AND IS

INVALID THE TRIAL COURT HAS DENY (SIC) APPELLANT'S RIGHT TO APPEAL,

BY REFUSING TO CORRECT A 'VOID SENTENCE', DIVESTING THE APPELLATE

COURT OF SUBJECT MATTER JURISDICTION."

                                           III

      {¶8}   "THE TRIAL COURT ERRED IN SENTENCING APPELLANT WITHOUT

THE GUILTY VERDICT HAVING STATED EITHER THE DEGREE OF THE OFFENSE

OF WHICH THE APPELLANT IS FOUND GUILTY, OR THAT SUCH ADDITIONAL

ELEMENT OR ELEMENTS ARE PRESENT, VIOLATING THE APPELLANT SIXTH

AMENDMENT RIGHT TO A JURY TRIAL."

                                           IV

      {¶9}   "A JUDGMENT OF CONVICTION MUST INCLUDE THE SENTENCE

AND THE MEANS OF CONVICTION, WHETHER BY PLEA, VERDICT, OR FINDING

BY THE COURT, TO BE A FINAL APPEALABLE ORDER."

                                            I

      {¶10} Appellant claims the trial court erred in denying his motion to vacate

sentence/re-sentence appropriately/motion for new trial.

      {¶11} Appellant argues the verdict form failed to conform to the mandates of

R.C. 2945.75 and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256.
Licking County, Case No. 10-CA-94                                                       4


       {¶12} In appellant's direct appeal, he assigned as error, "[a]ppellant was

sentenced in contravention of law." State v. Nethers, Licking App. No. 07 CA 78, 2008-

Ohio-2679, ¶37. This court specifically addressed this issue and the Pelfrey case as

follows:

       {¶13} "R.C. §2945.75(A)(2) requires that a guilty verdict state either the degree

of the offense of which an offender is found guilty, or that the additional elements that

make an offense one of a more serious degree are present. If neither is included, R.C.

§2945.75(A)(2) directs that 'a guilty verdict constitutes a finding of guilty of the least

degree of the offense charged.'

       {¶14} "In Pelfrey, the Supreme Court of Ohio interpreted R.C. §2945.75(A)(2)

and held that 'a verdict form signed by a jury must include either the degree of the

offense of which the defendant is convicted or a statement that an aggravating element

has been found to justify convicting a defendant of a greater degree of a criminal

offense.' Id. at syllabus.

       {¶15} "Appellant raises this challenge in connection with his third-degree felony

convictions for Gross Sexual Imposition, in violation of R.C. §2907.05(A)(4).

       {¶16} "***

       {¶17} "The verdict form does not contain the degree of the offense or any

statement of an aggravating element.        Thus, Appellant contends that he can be

convicted only of the least degree of the offense. We disagree.

       {¶18} "The Tenth District Court of Appeals recently considered and rejected this

very argument in terms of GSI convictions. See State v. Kepiro, Franklin App. No.

06AP-1302, 2007-Ohio-4593, at ¶29-34. In Kepiro, the Tenth District held that there are
Licking County, Case No. 10-CA-94                                                      5


no additional elements or circumstances over and above the elements of the offense set

forth in R.C. §2907.05(A) that enhance the penalty for a GSI conviction. With nothing

more than the guilty verdict, an appellant is convicted of a third-degree felony. Thus,

the reasoning in Pelfrey was not applicable, and the verdict form did not need to contain

the degree of the offense or a statement that an aggravating element had been found

by the jury. (See also, State v. Crosky, Tenth Dist. App. No. 06AP-655, 2008-Ohio-

145).

        {¶19} "Upon review of the instant case, we find that the Gross Sexual Imposition

statute under which Appellant was charged contains all the necessary elements of the

offense. A violation of R.C. §2907.05(A)(4) is a felony of the third degree. There are no

additional elements or circumstances over and above the elements of the offense set

forth [in] R.C. §2907.05(A)(4) that enhance the penalty for the conviction. Thus, the

verdict form did not need to contain the degree of the offense or a statement that an

aggravating element has been found by the jury." Nethers, at ¶50-57.

        {¶20} There was no appeal taken from our decision.        In Grava v. Parkman

Township, 73 Ohio St.3d 379, 1995-Ohio-331, syllabus, the Supreme Court of Ohio

explained res judicata as "[a] valid, final judgment rendered upon the merits bars all

subsequent actions based upon any claim arising out of the transaction or occurrence

that was the subject matter of the previous action."

        {¶21} Under the doctrine of res judicata, this assignment of error fails as a

matter of law.

        {¶22} Assignment of Error I is denied.
Licking County, Case No. 10-CA-94                                                        6


                                         II, III, IV

       {¶23} In these assignments, appellant challenges this court's jurisdiction to have

reviewed his assignments of error in his direct appeal as his sentence was void, and the

judgment of conviction.

       {¶24} Appellant argues this court had no jurisdiction to hear his direct appeal

because his sentence was void. As we found in his direct appeal, appellant's sentence

was not void.

       {¶25} Appellant also argues he had the "right to have the jury find the existence

of 'any particular fact' that the law makes essential to his punishment," and cites Blakely

v. Washington (2004), 542 U.S. 296, in support. See, Appellant's Brief at 10. As held

by the Supreme Court of Ohio in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

paragraph seven of the syllabus, "[t]rial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum, consecutive, or more than the minimum

sentences."

       {¶26} Lastly appellant argues the judgment of conviction "does not contain the

manner of conviction" (Appellant's Brief at 12), and cites State v. Baker, 119 Ohio St.3d

197, 2008-Ohio-3330, syllabus, in support:

       {¶27} "A judgment of conviction is a final appealable order under R.C. 2505.02

when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon

which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)

entry on the journal by the clerk of court. (Crim.R.32(C), explained.)"
Licking County, Case No. 10-CA-94                                                      7


      {¶28} We have examined appellant's sentencing entry filed June 5, 2007 and

find it meets the requirements of Crim.R 32(C) and Baker.        Further, the trial court

properly informed appellant of postrelease control. T. at 9; State v. Simpkins, 117 Ohio

St.3d 420, 2008-Ohio-1197.

      {¶29} Assignments of Error II, III, and IV are denied.

      {¶30} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Edwards, J. concur.




                                            _s/ Sheila G. Farmer__________________




                                            _s/ John W. Wise_____________________




                                            _s/ Julie A. Edwards__________________

                                                               JUDGES

SGF/sg 314
Licking County, Case No. 10-CA-94                                                8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
LOREN NETHERS                            :
                                         :
       Defendant-Appellant               :         CASE NO. 10-CA-94




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

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                         _s/ Sheila G. Farmer__________________




                                         _s/ John W. Wise_____________________




                                         _s/ Julie A. Edwards__________________

                                                         JUDGES
