 [Cite as State v. Smith, 2014-Ohio-1119.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 JAMES SMITH

         Defendant-Appellant

 Appellate Case No. 25733

 Trial Court Case No. 2004-CR-3060

 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                 Rendered on the 21st day of March, 2014.

                                              ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301
West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

JAMES SMITH, Inmate #497-893, M.A.C.I., P.O. Box 740, London, Ohio 43140
     Defendant-Appellant-pro se

                                                     .............

WRIGHT, J., sitting by assignment.
                                                                                         2



        {¶ 1} Appellant, James Smith, appeals from the judgment of the Montgomery County

Court of Common Pleas. Smith was convicted in 2005 of one count of rape and one count of

aggravated burglary. As the basis of his appeal, he claims he was convicted and sentenced on an

indictment that was dismissed. For the following reasons, we affirm.

        {¶ 2} On September 27, 2004, a grand jury indicted Smith for aggravated burglary and

rape. On February 25, 2005, the grand jury re-indicted Smith for the same aggravated burglary

and rape offenses, and indicted Smith for the additional offense of possession of cocaine. One

month later, the trial court dismissed the September 27, 2004 indictment only. The cocaine

charge was severed and Smith proceeded to trial on the aggravated burglary and rape offenses.

He was found guilty of both rape and aggravated burglary on March 18, 2005. In April of 2005,

he was sentenced to a nine-year prison term for the aggravated burglary and a consecutive

eight-year prison term for the rape. The cocaine charge was later dismissed.

        {¶ 3} In 2011, Smith moved for a final appealable order and for his sentence to be

vacated. Part of that motion alleged that the means of conviction (i.e. whether he was convicted

by a judge or jury) was not specified in the sentencing entry. The state agreed that the means of

conviction did not comply with Crim.R. 32(C). On October 24, 2011, the trial court filed a nunc

pro tunc termination entry clarifying that a jury convicted Smith of the rape and aggravated

burglary offenses. The rest of Smith’s motion was otherwise denied. A year later Smith filed a

motion for a new trial on the basis that he was denied his right to have effective assistance of

counsel, because he was convicted on an indictment that was dismissed. The trial court denied

the motion. This appeal followed.
                                                                                         3


        {¶ 4} As his sole assignment of error, Smith alleges that: “James E. Smith was not

afforded his constitutional rights and was denied due process by his first indictment being nolle

and journalize, and reindictment (sic) being withdrawn, it was not a final appealable order, his

sentence and conviction is void and lack subject matter juridiction (sic).”

        {¶ 5} We review trial court decisions denying leave to file for a new trial for an abuse

of discretion. State v. Risden, 2d Dist. Montgomery No. 25234, 2013-Ohio-1823, ¶ 11. An

abuse of discretion is the trial court's “failure to exercise sound, reasonable, and legal

decision-making." State v. Beechler, 2d Dist. Clark App. No. 09-CA-54, 2010-Ohio-1900, ¶ 62.

        {¶ 6} Crim.R. 33(A) specifies that a new trial may not be granted unless one of the

enumerated grounds is met. Although Smith has not specified which ground he is basing his

motion on, it appears he is claiming that his conviction was contrary to law. See Crim.R.

33(A)(4). Within his application for a new trial and on appeal Smith’s entire argument is based

upon the assertion that he was convicted on an indictment that was dismissed. This was simply

not the case.    The 2005 re-indictment was not dismissed and he was convicted on that

indictment. The sole assignment of error is therefore without merit.

        {¶ 7} For the reasons discussed above, the judgment of the Montgomery County Court

of Common Pleas is hereby affirmed.




                                                    .............

FROELICH, P.J., and FAIN, J. concur.

(Hon. Thomas R. Wright, Eleventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).
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Copies mailed to:

Mathias H. Heck
Michele D. Phipps
James Smith
Hon. Dennis J. Adkins
