[Cite as State v. MIller, 2011-Ohio-3039.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee   :       Hon. Sheila G. Farmer, J.
                                               :
-vs-                                           :
                                               :       Case No. 2011-CA-00074
CURTIS ALLEN MILLER                            :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No. 2005-
                                                   CR-1564

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            June 20, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    CURTIS ALLEN MILLER PRO SE
PROSECUTING ATTORNEY                               #A500-306
BY: KATHLEEN O. TATARSKY                           Lake Erie Correctional Institution
110 Central Plaza S., Ste 510                      Box 8000
Canton, OH 44702                                   Conneaut, OH 44030
[Cite as State v. MIller, 2011-Ohio-3039.]


Gwin, P.J.

        {¶1}     Defendant-appellant Curtis Allen Miller appeals the March 24, 2011

Judgment Entry entered by the Stark County Court of Common Pleas, which denied his

Motion to Vacate Void Judgment Based on Structural Error of Jury Verdict Form and

Improper Notification of Post Release Control. Plaintiff-appellee is the State of Ohio.

                                         STATEMENT OF THE CASE1

        {¶2}     On November 15, 2005, the Stark County Grand Jury indicted appellant

on one count of burglary in violation of R.C. 2911.12. Said charge arose from an

incident wherein appellant broke into a home occupied by two children, ages fourteen

and twelve.

        {¶3}     A jury trial commenced on January 5, 2006. The jury found appellant guilty

as charged. By judgment entry filed January 17, 2006, the trial court sentenced

appellant to eight years in prison. Appellant appealed and this court affirmed appellant's

conviction, but remanded his case for resentencing in light of State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856. See, State v. Miller, Stark App. No.2006CA00032, 2006-Ohio-

5683. [“Miller 1”].

        {¶4}     A resentencing hearing was held on November 22, 2006. By judgment

entry filed November 28, 2006, the trial court again sentenced appellant to eight years

in prison. Appellant’s conviction and sentence was affirmed by this Court. See, State v.

Miller, Stark App. No. 2006 CA00378, 2007-Ohio-2466. [“Miller 2”].

        {¶5}     On March 21, 20011 appellant filed a “Motion to Vacate Void Judgment

Based on Structural Error of Jury Verdict Form and Improper Notification of Post

        1
         A Statement of the Facts underlying Appellant's conviction is not necessary for our disposition of
this appeal; therefore, such shall not be included herein.
Stark County, Case No. 2011-CA-00074                                                    3


Release Control.” Appellant argued that the jury verdict form only convicted him of

burglary under R.C. 2911.12, a felony of the fourth degree instead of a felony of the

second degree. The trial court overruled the motion on March 24, 2011.

      {¶6}   It is from the trial court’s overruling of his Motion to Vacate Void Judgment

Based on Structural Error of Jury Verdict Form and Improper Notification of Post

Release Control that appellant has appealed, raising as his sole assignment of error,

      {¶7}   “I.   THE   TRIAL    COURT      ABUSED      ITS   DISCRETION       AND/OR

COMMITTED PLAIN ERROR IN VIOLATION OF THE OHIO AND UNITED STATES

CONSTITUTIONS BY DENYING THE APPELLANT'S MOTION TO VACATE THE

VOID JUDGMENT BASED ON THE JURY VERDICT FORMS AS RES JUDICATA AS

THE SUFFICIENCY OF A JURY VERDICT FORM TO JUSTIFY CONVICTING A

DEFENDANT OF A GREATER DEGREE OF A CRIMINAL OFFENSE PRESENTS A

QUESTION OF LAW, WHICH THE COURT REVIEWS DE NOVO. A                       STRUCTURAL

ERROR OF LAW IS A CONSTITUTIONAL DEFECT THAT EFFECTS THE

FRAMEWORK WITHIN WHICH THE TRIAL PROCEEDS RATHER THAN SIMPLY

BEING AN ERROR IN THE TRIAL ITSELF. A STRUCTURAL ERROR GIVES RISE TO

A CONSTITUTIONAL PRESUMPTION OF PREJUDICE AS A MATTER OF

AUTOMATIC REVERSAL, OF WHICH- RES JUDICATA DOES NOT APPLY.”

                                               I.

      {¶8}   This case comes to us on the accelerated calendar. App. R. 11.1, which

governs accelerated calendar cases, provides, in pertinent part:

      {¶9}   "(E) Determination and judgment on appeal. The appeal will be

determined as provided by App. R. 11. 1. It shall be in sufficient compliance with App.
Stark County, Case No. 2011-CA-00074                                                      4


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

brief and conclusionary form. The decision may be by judgment entry in which case it

will not be published in any form."

       {¶10} One of the important purposes of the accelerated calendar is to enable an

appellate court to render a brief and conclusory decision more quickly than in a case on

the regular calendar where the briefs, facts and legal issues are more complicated.

Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App. 3d 158, 463 N.E.2d

655. This appeal shall be considered in accordance with the aforementioned rule.

       {¶11} Appellant maintains his sentence is void claiming the verdict form in his

case was defective because it did not state the level of the offense on which he was

convicted. We disagree.

       {¶12} Appellant cites R.C. 2945.75 in support of his argument that error

occurred.

       {¶13} R.C. 2945.75 provides:

       {¶14} “(A) When the presence of one or more additional elements makes an

offense one of more serious degree:

       {¶15} “(1) The affidavit, complaint, indictment, or information either shall state

the degree of the offense which the accused is alleged to have committed, or shall

allege such additional element or elements. Otherwise such affidavit, complaint,

indictment, or information is effective to charge only the least degree of the offense.

       {¶16} “(2) A guilty verdict shall state either the degree of the offense of which

the offender is found guilty, or that such additional element or elements are present.
Stark County, Case No. 2011-CA-00074                                                           5


Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the

offense charged.”

       {¶17} The Supreme Court of Ohio has interpreted this statute to provide the

requirements for what must be included in a jury verdict form. State v. Pelfrey, 112 Ohio

St.3d 422, 860 N.E.2d 735, 2007-Ohio-256 at ¶ 14. The Pelfrey Court held that

"pursuant to the clear language of R.C. 2945.75, 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. See also, State v. Nethers, Licking App.

No. 07 CA 78, 2008-Ohio-2679 at ¶ 51.

       {¶18} In Pelfrey, the jury found him guilty, and he was sentenced on the third-

degree felony conviction to serve four years in prison. The Second District Court of

Appeals affirmed Pelfrey's conviction, rejecting a manifest-weight-of-the-evidence

argument. State v. Pelfrey, Montgomery App. No. 19955, 2004-Ohio-3401. The court of

appeals subsequently granted Pelfrey's application to reopen the appeal under App.R.

26(B). Pelfrey argued that the trial court had erred in entering a conviction of a third-

degree felony because the verdict form and the trial court's subsequent verdict entry

were inadequate to support a conviction of tampering with government records. Instead,

Pelfrey argued that he could have been convicted only of the misdemeanor offense of

tampering with records. See R.C. 2913.42(B) (2).

       {¶19} The Second District Court of Appeals agreed with Pelfrey's argument and

stated, “‘Pelfrey's failure to raise this defect at trial did not waive it, and the fact that the

indictment and jury instructions addressed the government-records issue did not cure
Stark County, Case No. 2011-CA-00074                                                     6

the non-compliance with R.C. 2945.75(A) (2).’ ” State v. Pelfrey, Montgomery App. No.

19955, 2005-Ohio-5006, 2005 WL 2327123, ¶ 23, quoting State v. Woullard, 158 Ohio

App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 23.(Emphasis added). The court of

appeals held that “the trial court was required to enter a conviction for first-degree

misdemeanor tampering with records, which is the least degree of the offense under

R.C. § 2913.42.” Id. The Ohio Supreme Court in Pelfrey agreed that he did not waive

the error by failing to raise it in the trial court. 112 Ohio St.3d 425-426, 860 N.E.2d at

735, 2007-Ohio-256 at ¶ 14. (Emphasis added).

       {¶20} “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 * * * any defense or any claimed lack of due process that was raised or

could have been raised by the defendant at the trial, which resulted in that judgment of

conviction, or on any appeal from that judgment.” State v. Svefcyk (1996), 77 Ohio St.3d

93, syllabus.

       {¶21} In the present case, appellant did not seek to present his arguments as a

timely direct appeal; rather he filed a motion to correct a void sentence subsequent to

the time when he could have raised the issue in a direct appeal. We find no reason to

override the general rule in Ohio that a trial court has no authority to reconsider a valid

final judgment in a criminal case. State v. Brown, 5th District No. 09–CA–137, 2010–

Ohio–2757 at ¶ 19, citing State v. Moore, 4th Dist. No. 03CA18, 2004–Ohio–3977.

       {¶22} As this Court has previously noted, Pelfrey applies only in a procedural

posture of a direct appeal. State v. Branco, Stark App. No. 2010–CA–00098, 2010–

Ohio–3856 at ¶ 14; State v. Brown, Richland App. No. 09–CA–137, 2010–Ohio–2757 at
Stark County, Case No. 2011-CA-00074                                                     7

¶ 17. In the case at bar appellant could have, but did not, raise this issue in Miller 1 or

even in Miller 2, supra. Appellant had the opportunity to raise this issue on direct

appeal, but, unlike the defendant in Pelfrey, he failed to do so. The doctrine of res

judicata bars appellant from raising this issue anew via a motion to vacate a sentence.

State v. Foy, Stark App. No. 2009-CA-00239, 2010-Ohio-2445 at ¶ 8.

       {¶23} Because appellant could have raised this claim on direct appeal, we find

the doctrine of res judicata is applicable and the trial court did not err in denying his

Motion to Vacate Void Judgment Based on Structural Error of Jury Verdict Form and

Improper Notification of Post Release Control.

       {¶24} Moreover, even if we were to consider appellant's arguments on the

merits, we find that the verdict forms did comply with Pelfrey.

       {¶25} Appellant was convicted of burglary in violation of R.C. 2911.12(A)(2)

which states the following:

       {¶26} “(A) No person, by force, stealth, or deception, shall do any of the

following:

       {¶27} “* * *

       {¶28} “(2) Trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure that is a permanent or temporary

habitation of any person when any person other than an accomplice of the offender is

present or likely to be present, with purpose to commit in the habitation any criminal

offense.

       {¶29} “* * *
Stark County, Case No. 2011-CA-00074                                                         8


       {¶30} “(C) Whoever violates this section is guilty of burglary. A violation of

division (A)(1) or (2) of this section is a felony of the second degree. A violation of

division (A)(3) of this section is a felony of the third degree. A violation of division (A)(4)

of this section is a felony of the fourth degree.”

       {¶31} Unlike the statute at issue in Pelfrey, the charge in the case at bar

contains the degree of the offense charged in the language of the statute, and does not

require any additional findings to enhance the level of the offense. Because the statute

under which appellant was convicted defines the degree of the offense charged, the

verdict form complied with Pelfrey without including any additional language or the

degree of the offense charged.

       {¶32} Appellant’s sole assignment of error is overruled.

       {¶33} The judgment of the Stark County Court of Common Pleas is affirmed.



By Gwin, P.J.,

Hoffman, J., and

Farmer, J., concur




                                                _________________________________
                                                HON. W. SCOTT GWIN

                                                _________________________________
                                                HON. WILLIAM B. HOFFMAN

                                                _________________________________
                                                HON. SHEILA G. FARMER

WSG:clw 0609
[Cite as State v. MIller, 2011-Ohio-3039.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
CURTIS ALLEN MILLER                               :
                                                  :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011-CA-00074




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

the Stark County Court of Common Pleas is affirmed. Costs to appellant.




                                                      _________________________________
                                                      HON. W. SCOTT GWIN

                                                      _________________________________
                                                      HON. WILLIAM B. HOFFMAN

                                                      _________________________________
                                                      HON. SHEILA G. FARMER
