      [Cite as State v. Myers, 2018-Ohio-1871.]




                          IN THE COURT OF APPEALS OF OHIO
                              SIXTH APPELLATE DISTRICT
                                    WOOD COUNTY


State of Ohio                                         Court of Appeals No. WD-17-063

      Appellee                                        Trial Court No. 2013CR0141

v.

Craig R. Myers                                        DECISION AND JUDGMENT

      Appellant                                       Decided: May 11, 2018

                                                  *****

      Paul A. Dobson, Wood County Prosecuting Attorney, and
      David T. Harold, Assistant Prosecuting Attorney, for appellee.

      Craig R. Myers, pro se.

                                                  *****


      JENSEN, J.

      {¶ 1} In this accelerated appeal, appellant, Craig Myers, appeals the judgment of

the Wood County Court of Common Pleas, denying his “motion to vacate sentence and
judgment.” This judgment entry is not an opinion of the court. See S.Ct.R.Rep.Op. 2;

App.R. 11.1(E); 6th Dist.Loc.App.R. 12.

      {¶ 2} On appeal, appellant assigns the following errors for our review:

             FIRST ASSIGNMENT OF ERROR: The Trial Court abused [its]

      discretion, by stating that a Trial Court, State Prosecutor, as well as State

      Appellate [Courts], do not have to honor the Legislative Intent of the

      Retaliation statute, that was set forth by the Legislative Body in House Bill

      88.

             SECOND ASSIGNMENT OF ERROR: The State Prosecution,

      committed Plain Error in obtaining an indictment for the criminal offense

      of Retaliation R.C. 2921.05(A) prior to the judicial decision in the

      underlying offense(s) for the case of State v. Myers, 2011 CR 364.

      Appellant Myers, was deprived of his rights to a Grand Jury indictment, to

      due process and a fair trial pursuant to Art. I, Section 10 of the Ohio

      Constitution and the Fifth and Fourteenth Amendment to the United States

      Constitution when the indictment failed to include all the essential elements

      of the offense charged and the jury was never instructed on the rendering of

      the underlying offense(s) in a judicial decision. The misconduct of the

      Prosecutor so tainted the trial with unfairness that Appellant Myers, was

      denied due process, and a fair trial in violation of the Fifth and Fourteenth

      Amendment to the United States Constitution, and article I Section X of the

      Ohio Constitution.

      2.
              THIRD ASSIGNMENT OF ERROR: Plain Error pursuant to

       Crim.R. 52(B) can occur within improper instructions to a grand jury, and

       or trial court jury.

              FOURTH ASSIGNMENT OF ERROR: The Court of Appeals of

       Ohio, Sixth Appellate District for Wood County, committed Plain Error

       pursuant to Crim.R. 52(B) in upholding Appellant Myers’ conviction.

       {¶ 3} We will address appellant’s assignments of error out of order. In his fourth

assignment of error, appellant takes issue with our decision in State v. Myers, 6th Dist.

Wood No. WD-15-017, 2016-Ohio-223, in which we affirmed appellant’s conviction for

retaliation. Our decision was subsequently appealed to the Ohio Supreme Court, which

denied discretionary review. State v. Myers, 146 Ohio St.3d 1414, 2016-Ohio-3390, 51

N.E.3d 659. Appellant now argues that our decision in Myers was inconsistent with a

2011 decision we issued. This argument is clearly barred by res judicata as it could have

been raised in an appeal to the Ohio Supreme Court or in a motion for reconsideration

with this court. Consequently, appellant’s fourth assignment of error is not well-taken.

       {¶ 4} In his first three assignments of error, appellant challenges the trial court’s

denial of his motion to vacate his sentence. Since these assignments of error are

interrelated, we will address them simultaneously.

       {¶ 5} A basic review of the procedural facts of this case will suffice to address

appellant’s first three assignments of error. On September 29, 2017, appellant filed a

notice of appeal with this court, in which he appealed from the trial court’s February 6,



       3.
2015 judgment entry of conviction following a jury trial where he was found guilty of

retaliation in violation of R.C. 2921.05(A)(C) and sentenced to 30 months in prison.

Approximately three weeks later, appellant filed his motion to vacate his sentence with

the trial court. The trial court denied appellant’s motion to vacate on November 29,

2017. On December 4, 2017, we issued our decision denying appellant’s motion for

leave to file a delayed appeal. Appellant has since filed a notice of appeal with the Ohio

Supreme Court, which remains pending.

       {¶ 6} “Once a case has been appealed, the trial court loses jurisdiction except to

take action in aid of the appeal. The trial court retains jurisdiction over issues not

inconsistent with the appellate court’s jurisdiction to reverse, modify, or affirm the

judgment appealed from.” (Internal citations omitted.) In re S.J., 106 Ohio St.3d 11,

2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9.

       {¶ 7} Here, we find that the trial court lacked jurisdiction to consider appellant’s

motion to vacate his sentence. Had the trial court granted appellant’s motion, we would

have been unable to reverse, modify, or affirm the judgment entry of conviction in the

appeal that was pending before this court. See State v. Rogers, 8th Dist. Cuyahoga No.

101063, 2014-Ohio-3924, ¶ 6 (finding that trial court lacked jurisdiction to consider

motion to vacate during the pendency of an appeal because such consideration would

interfere with the appellate court’s jurisdiction). Because the trial court acted without

jurisdiction, the denial of appellant’s motion to vacate was a nullity. We lack jurisdiction

to hear this appeal and we therefore dismiss the appeal.



       4.
       {¶ 8} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.



                                                                        Appeal dismissed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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