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State of Ohio v. Daniel Staffrey

November 3, 2011

STATE OF OHIO,
PLAINTIFF-APPELLEE,
v.
DANIEL STAFFREY, SR., DEFENDANT-APPELLANT.



Criminal Appeal from Common Pleas Court, Case No. 95CR819.

The opinion of the court was delivered by: Vukovich, J.

Cite as State v. Staffrey,

CHARACTER OF PROCEEDINGS:

JUDGMENT:

Case No. 10MA130 is Affirmed; Case No. 10MA131 is Dismissed.

JUDGES: Hon. Joseph J. Vukovich Hon. Cheryl L. Waite Hon. Mary DeGenaro

OPINION

¶{1} In these consolidated appeals, defendant-appellant Daniel Staffrey, Sr. appeals from two separate judgment entries issued by the Mahoning County Common Pleas Court in case number 95CR819. In that case number he pled guilty to rape, attempted aggravated murder, kidnapping and aggravated burglary. In case number 10MA131, Staffrey appeals from the trial court's July 2010 nunc pro tunc entry which corrected the previous December 1996 judgment of conviction and sentence in that case. The nunc pro tunc entry was issued because the 1996 judgment entry failed to include the means of conviction. Although he has previously appealed his 1996 sentence and conviction, Staffrey now asserts that he is entitled to a new appeal because the 1996 judgment was not a final appealable order when it did not contain the manner of conviction. In case number 10MA130, he is appealing the trial court's July 2010 denial of his motion to withdraw his guilty plea.

¶{2} Based upon the Ohio Supreme Court's recent pronouncement in State v. Lester, ___ Ohio St.3d ___, 2011-Ohio-5204, we find that the July 2010 nunc pro tunc order is not a new final order from which a new appeal may be taken. The nunc pro tunc order was merely used to correct a clerical omission. Consequently, for those reasons, the appeal in case number 10MA131 is dismissed. As to case number 10MA130, the trial court's decision denying the motion to withdraw the guilty plea is affirmed.

STATEMENT OF THE CASE

¶{3} On November 22, 1995, Staffrey was indicted by the Mahoning County Grand Jury for: rape in violation of R.C. 2907.02(A)(2); attempted aggravated murder in violation of R.C. 2923.02(A) and R.C. 2903.01(A); kidnapping in violation of R.C. 2905.01(A)(4); and aggravated burglary in violation of R.C. 2911.11(A)(3). All counts were first degree felonies and all counts were accompanied by firearm specifications.

¶{4} On June 27, 1996, Staffrey entered into a plea agreement whereby he pled guilty to the four counts in the indictment and the state recommended that the firearm specifications be dismissed. The trial court accepted the guilty plea. He was sentenced on November 26, 1996. Staffrey received an aggregate sentence of fifteen to fifty years. 12/11/96 J.E. He was sentenced to ten to twenty five years on each of the rape, kidnapping and aggravated burglary convictions. 12/11/96 J.E. Those sentences were ordered to be served concurrent to each other. 12/11/96 J.E. For the attempted aggravated murder conviction, he received a five to twenty-five year sentence that was ordered to be served consecutive to the other sentences. 12/11/96 J.E.

¶{5} Staffrey appealed from his conviction and sentence. We affirmed the trial court's decision. State v. Staffrey (June 25, 1999), 7th Dist. No. 96CA246. The arguments asserted in that appeal concerned sentencing.

¶{6} In June 2009, Staffrey filed a Motion to Withdraw Guilty Plea (Crim.R. 32.1); Motion for Resentencing. The motion argued that Staffrey would not have pled guilty if he knew he would receive an indefinite sentence and that shock probation or judicial release was not available to him. The motion also argued that pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, the trial court's judgment of conviction did not constitute a final order because it failed to comply with Crim.R. 32(C).

¶{7} Since the trial court did not immediately rule on the motion, Staffrey filed a petition for a writ of mandamus and procedendo against the trial judge. State ex rel. Staffrey v. D'Apolito, 188 Ohio App.3d 56, 2010-Ohio-2529. We granted the writ in part. Id. at ¶27. We held that the trial court's judgment of conviction was not a final appealable order because it did not state the means of conviction and thus, it did not comply with Crim.R. 32 or Baker. Id. at ¶24. Thus, we stated that Staffrey was entitled to a revised sentencing entry that complies with Crim.R. 32 and Baker. Id. at ¶26. We also ordered the court to rule on the motion to withdraw the guilty plea. Id. at ¶27.

ΒΆ{8} On July 9, 2010, the trial court reissued the December 11, 1996 sentencing order and included the means of conviction. Thus, the new order complies with the mandates of Crim.R. 32 and Baker. A few days after the revised sentencing order, the trial ...


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