[Cite as State v. Wilson, 2012-Ohio-1660.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :   C.A. CASE NO. 24461, 24496
                                                                     24501
vs.                                               :    T.C. CASE NO. 07CR2134

ANTHONY L. WILSON                                  :   (Criminal Appeal from
                                                        Common Pleas Court)
        Defendant-Appellant                        :

                                       . . . . . . . . .

                                             O P I N I O N

                    Rendered on the 13th day of April, 2012.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Andrew T. French, Asst. Pros.
Attorney, Atty. Reg. No. 0069384, P.O. Box 972, Dayton, OH 45422

        Attorneys for Plaintiff-Appellee

George A. Katchmer, Atty. Reg. No. 0005031, 108 Dayton Street,
Yellow Springs, OH 45387
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1}     This matter is before the court on three appeals filed

by Defendant, Anthony Wilson, which have been consolidated.

        {¶ 2}     Defendant was convicted in 2007 following a jury trial

of    complicity          to     commit        felonious   assault,   with   a   firearm
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specification.     The trial court sentenced Defendant to seven years

in prison.    We affirmed Defendant’s conviction and sentence on

direct appeal.     State v. Wilson, 2d Dist. Montgomery No. 22581,

2009-Ohio-525.

     {¶ 3}   On March 30, 2010, Defendant filed a motion for leave

to file an untimely motion for a new trial based upon newly

discovered evidence.      Defendant claimed that while in prison he

discovered    a   new   witness,   Brian   Davis,    who    would    present

exculpatory testimony.       The trial court overruled Defendant’s

motion on a finding Defendant failed to meet his burden under

Crim.R. 33 to demonstrate that he was unavoidably prevented from

timely discovering the testimony of Brian Davis.           Defendant timely

appealed the trial court’s decision, which gives rise to Case No.

CA24496.

     {¶ 4}   On December 17, 2010, Defendant filed a motion asking

the trial court to stay collection of the court costs until after

Defendant’s   release     from   prison.    The     trial    court   denied

Defendant’s motion and Defendant timely appealed, giving rise to

Case No. CA24461.

     {¶ 5} On February 23, 2011, Defendant was brought back before

the trial court for resentencing pursuant to R.C. 2929.191, in

order to correct a defect in the imposition of postrelease control.

 Defendant objected to the limited scope of the resentencing

hearing and requested a new de novo resentencing hearing.               The
                                                                   3

trial court denied Defendant’s request.     On that same date, the

court filed an amended judgment of conviction which imposed a term

of postrelease control, nunc pro tunc to the 2007 judgment of

conviction, and also stated that the manner of Defendant’s

conviction was a jury verdict.   Defendant timely appealed, giving

rise to Case No. CA24501.

     FIRST ASSIGNMENT OF ERROR

     {¶ 6} “A TERMINATION ENTRY THAT DOES NOT COMPLY WITH R.C.

2505.02 IS NOT A FINAL APPEALABLE ORDER.”

     {¶ 7} Defendant argues that because his original 2007 Judgment

Entry of Conviction (Termination Entry) did not set forth the manner

of his conviction, by jury verdict, it is void and does not

constitute a final appealable order per State v. Baker, 119 Ohio

St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and therefore he is

entitled to a new direct appeal.

     {¶ 8} Crim.R. 33(C) provides, in pertinent part: “A judgment

of conviction shall set forth the plea, the verdict, or findings,

upon which each conviction is based, and the sentence.”       Baker

held that a judgment of conviction which does not set forth the

manner of the conviction, by plea, verdict, or findings, fails

to comply with Crim.R. 32(C), and therefore is not a final order

for purposes of R.C. 2505.02.

     {¶ 9} On October 13, 2011, subsequent to the filing of

Defendant’s brief on appeal, the Supreme Court decided State v.
                                                                    4

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142.   Lester

modified Baker and held that a judgment of conviction need not

state the manner of conviction, a plea or a verdict, in order to

be a final order for purposes of R.C. 2505.02.    The judgment need

only set forth (1) the fact of the conviction, (2) the sentence,

(3) the judge’s signature, and (4) the time stamp indicating the

entry of the judgment on the journal by the clerk.      Id.

     {¶ 10} Defendant’s 2007 judgment of conviction satisfied the

Lester requirements.   It was a valid final order.

     {¶ 11} Defendant’s first assignment of error is overruled.

     SECOND ASSIGNMENT OF ERROR

     {¶ 12} “A LAPSE OF OVER THREE YEARS BETWEEN TRIAL AND SENTENCING

VIOLATES THE APPELLANT’S RIGHT TO SPEEDY SENTENCING UNDER CRIM.R.

32(A).”

     THIRD ASSIGNMENT OF ERROR

     {¶ 13} “THE APPELLANT’S SPEEDY TRIAL RIGHTS WERE VIOLATED BY

A THREE YEAR TRIAL.”

     {¶ 14} These assignments of error are predicated on Defendant’s

contention that, because imposition of sentence is an integral

part of a defendant’s trial, the delay between Defendant’s

original, “void” judgment of conviction entered on December 17,

2007, and the corrected judgment of conviction the court entered

on February 23, 2010, stating the manner of his conviction, violates

Defendant’s statutory and constitutional right to a speedy trial.
                                                                          5

 In effect, Defendant argues that his trial was ongoing for over

three years.

     {¶ 15} The December 17, 2007 judgment of conviction was not

void for failure to state the manner of Defendant’s conviction,

as we explained in overruling the first assignment of error.             It

was complete when journalized because the judgment set forth (1)

the fact of the conviction, (2) the sentence imposed, (3) the

judge’s signature, and (4) a time-stamp indicating entry upon the

journal by the clerk.        Lester.   The February 28, 2010 amended

judgment of conviction did not add an element necessary to a final

order.    Defendant’s “trial” was concluded when the 2007 judgment

of conviction was entered.         His speedy trial rights were not

violated.    Further, Defendant’s failure to raise the speedy trial

issue in the trial court waives his right to argue the error on

appeal.

     {¶ 16} Defendant’s second and third assignments of error are

overruled.

     FOURTH ASSIGNMENT OF ERROR

     {¶ 17} “THE   TRIAL   COURT   ERRED   IN   NOT   CONDUCTING   A   FULL

SENTENCING HEARING DE NOVO.”

     {¶ 18} When Defendant appeared in court on February 23, 2011,

for a resentencing hearing pursuant to R.C. 2929.191, it was for

the limited purpose of correcting a defect in the imposition of

postrelease control.       Defendant argues that the trial court erred
                                                                          6

by limiting that resentencing hearing to the proper imposition

of postrelease control and not holding a new, de novo resentencing

hearing.     We disagree.

      {¶ 19} A proceeding to correct defect in notifying a defendant

of postrelease control requirements is limited to that matter,

and   does not require a de novo sentencing proceeding.            State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.             In

the present case, the resentencing, which preceded Lester, was

properly limited to the correction of the postrelease control

defect.      State   v.   Ludy,   2d    Dist.   Montgomery   No.    24261,

2011-Ohio-4544, at ¶17.

      {¶ 20} Defendant’s fourth assignment of error is overruled.

      FIFTH ASSIGNMENT OF ERROR

      {¶ 21} “THE TRIAL COURT ERRED IN FAILING TO STAY APPELLANT’S

COSTS, FINES AND RESTITUTION.”

      {¶ 22} Defendant moved to stay collection of court costs, fines,

and restitution on December 17, 2010, when his judgment of

conviction was filed.     The trial court overruled the motion, citing

State v. Glandon, 2d Dist. Montgomery No. 20988, 2006-Ohio-39,

holding that it lacked jurisdiction to grant the relief Defendant

requested.

      {¶ 23} Defendant argues that the trial court erred in its

reliance on Glandon.        We agree.    Glandon involved the court’s

power to recall execution of a judgment that had imposed costs,
                                                                            7

in order to avoid monies from being withheld from a prisoner’s

account.   We found that the defendant’s mode of relief to require

compliance with the Ohio Administrative Code was through a writ

of mandamus.

     {¶ 24} Nevertheless,    we   agree    with   the   trial   court    that

Defendant was not entitled to the relief his motion requested:

an order staying the court’s imposition of a duty to pay cost,

fines and restitution.      A court lacks the power to grant that relief

absent statutory authority.        State v. Clevenger, 114 Ohio St.3d

258, 2007-Ohio-4006, 871 N.E.2d 589.        Defendant has cited no such

authority, and we are aware of none.       The court may, upon a finding

of indigency, waive costs.        R.C. 2949.092.    However, that is not

the relief Defendant requested.

     {¶ 25} Defendant’s fifth assignment of error is overruled.

     SIXTH ASSIGNMENT OF ERROR

     {¶ 26} “THE TRIAL COURT ERRED IN DENYING THE APPELLANT’S MOTION

TO FILE A DELAYED MOTION FOR NEW TRIAL.”

     {¶ 27} Defendant   argues    that    the   trial   court   abused   its

discretion by overruling his motion for leave to file an untimely

motion for a new trial based upon newly discovered evidence.

     {¶ 28} The decision whether to grant a motion for a new trial

lies within the sound discretion of the trial court and will not

be disturbed on appeal absent an abuse of that discretion. State

v. Schiebel, 55 Ohio St.3d 71, 564 N.E.2d 54 (1990).
                                                                    8

     {¶ 29} “Abuse of discretion” has been defined as an attitude

that is unreasonable, arbitrary or unconscionable. Huffman v. Hair

Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248, 1252 (1985).

It is to be expected that most instances of abuse of discretion

will result in decisions that are simply unreasonable, rather than

decisions that are unconscionable or arbitrary.

     {¶ 30} A decision is unreasonable if there is no sound reasoning

process that would support that decision. It is not enough that

the reviewing court, were it deciding the issue de novo, would

not have found that reasoning process to be persuasive, perhaps

in view of countervailing reasoning processes that would support

a contrary result. AAAA Enterprises, Inc. v. River Place Community

Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

     {¶ 31} Pursuant to Crim.R. 33(A)(6), a new trial may be granted

when new evidence material to the defense is discovered that the

defendant could not with reasonable diligence have discovered and

produced at trial. To prevail on a motion for new trial based upon

newly discovered evidence, Defendant must show that the new

evidence: (1) discloses a strong probability that the result of

the trial would be different if a new trial were granted; (2) has

been discovered since the trial; (3) is such as could not have

been discovered before the trial through the exercise of due

diligence; (4) is material to the issues; (5) is not merely

cumulative to former evidence; and (6) does not merely impeach
                                                                      9

or contradict the former evidence. State v. Petro, 148 Ohio St.

505, 76 N.E.2d 370 (1947); State v. DeVaughns, 2d Dist Montgomery

No. 23720, 2011-Ohio-125.

     {¶ 32} Motions for a new trial based upon newly discovered

evidence must be filed within one hundred twenty days after the

verdict was rendered, unless it appears by clear and convincing

proof that the movant was unavoidably prevented from discovering

the new evidence, in which case the motion for new trial must be

filed within seven days after an order of the court finding that

Defendant was unavoidably prevented from discovering the new

evidence within the one hundred twenty day period. Crim.R. 33(B).

     {¶ 33} Defendant   was   convicted   of   complicity   to   commit

felonious assault, with a firearm specification.       The conviction

was supported by evidence that Defendant handed a firearm to the

victim’s girlfriend, which she then used to shoot the victim, twice.

 Defendant’s motion for a new trial is predicated upon alleged

newly discovered evidence, the testimony of Brian Davis.

     {¶ 34} Defendant claims Davis was a witness to the shooting,

and that he was unaware of Davis’ testimony until they met in

February 2010, over two years after Defendant’s trial, while both

men were incarcerated at London Correctional Institute.     According

to Defendant, if called to testify at trial Davis would have

testified that Defendant did not provide the victim’s girlfriend

the weapon she used to shoot the victim.        Defendant’s claim is
                                                                  10

supported by an affidavit signed by Davis and dated May 3, 2010.

     {¶ 35} The court held an evidentiary hearing on Defendant’s

motion on October 15, 2010.     Defendant and Brian Davis testified

at the hearing.     The trial court found that Defendant’s testimony

at the hearing was not credible.      The court further found that

Defendant knew Davis prior to this shooting, through dealings with

him involving the sale of drugs, and that Defendant and Davis

interacted on the night of this shooting.    Additionally, the trial

court pointed out that Davis testified at the hearing on Defendant’s

motion for a new trial and denied providing the information

contained in his affidavit,      said that Defendant wrote out his

affidavit, and disputed the contents of his affidavit and stated

that he could not testify at trial to the information contained

in his affidavit.    The court also pointed out that Davis testified

that he could offer only limited testimony, which is that he saw

a girl hollering, and heard gunshots, and then he and Defendant

began running.    Furthermore, Defendant’s witness list filed prior

to trial included a “Ryan Davis.”

     {¶ 36} Following oral argument, Defendant moved to supplement

the record with a transcript of the October 15, 2010 hearing on

his motion for new trial, and for leave to thereafter file a

supplemental brief regarding the testimony of Defendant and Brian

Davis at that hearing.    We granted Defendant’s motion, permitting

the parties to file supplemental briefs within twenty days after
                                                                      11

the transcript was filed.      The transcript was filed on February

14, 2012.    Defendant has not filed a supplemental brief.    The State

filed a notice of its intention to not file a supplemental brief.

             {¶ 37} On April 3, 2012, Defendant filed a motion captioned

Correction Or Modification Of The Record Pursuant to Appellate

Rule 9(E).    Defendant complains that the transcript of the October

15, 2010 hearing that was filed is incomplete because the word

“indiscernible” appears at various places in the transcribed

testimonies of Defendant and Brian Davis.       App.R. 9(E) authorizes

correction of omissions from the record by this court “on proper

suggestion or of its own initiative.”      Defendant does not identify

or suggest what matters were omitted.        The motion is Denied.

     {¶ 38} We find no abuse of discretion in the trial court’s denial

of Defendant’s motion for a new trial on the court’s finding that

Defendant failed to demonstrate by clear and convincing proof that

he was unavoidably prevented from discovering the new evidence.

     {¶ 39} Defendant’s sixth assignment of error is overruled.

The judgment of the trial court will be affirmed.

FAIN, J., And HALL, J., concur.



Copies mailed to:

Andrew T. French, Esq.
George A. Katchmer, Esq.
Hon. Mary Katherine Huffman
