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State v. Wiley

Court of Appeals of Ohio, Second District

July 3, 2013

STATE OF OHIO Plaintiff-Appellee
v.
BRYAN SEAN WILEY Defendant-Appellant

Criminal appeal from Common Pleas Court T.C. No. 05CR3324

R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

BRYAN SEAN WILEY, #A569-559, London Correctional Institute, Defendant-Appellant

OPINION

DONOVAN, J.

{¶ 1} Defendant-appellant Bryan Sean Wiley appeals an August 14, 2012, decision of the Montgomery Court of Common Pleas, Criminal Division, overruling his "motion to correct void sentencing." Wiley filed a timely notice of appeal with this Court on September 11, 2012.

{¶ 2} Wiley was originally convicted in Case No. 2005 CR 3324 of one count of possession of cocaine. The trial court sentenced him to five years of community control and suspended his driver's license for six months. Wiley did not appeal his conviction in Case No. 2005 CR 3324. Shortly thereafter, in Case No. 2006 CR 4157, Wiley was convicted for having a weapon while under disability and improperly discharging a firearm at or into a habitation. The improper discharge of a firearm count was accompanied by a firearm specification. As a result, the trial court revoked Wiley's community control in Case No. 2005 CR 3324 and sentenced him to eleven months in prison. In Case 2006 CR 4157, the trial court sentenced Wiley to eleven years in prison, to be served consecutively with the sentence imposed in Case No 2005 CR 3324, for an aggregate prison term of eleven years and eleven months. Wiley appealed his conviction and sentence in 2006 CR 4157, and in an opinion issued on April 24, 2009, State v. Wiley, 2d Dist. Montgomery No. 22628, 2009-Ohio-1932, we affirmed.

{¶ 3} On July 2, 2012, Wiley filed a "motion to correct void sentencing" and for re-sentencing in both Case Nos. 2005 CR 3324 and 2006 CR 4157. In his motion, Wiley argued that his convictions are void and re-sentencing is necessary because the trial judge purportedly failed to sign the judgment entries of conviction in either case. Wiley asserted that the trial judge merely rubber stamped her name on the termination entries in block letters in violation of Crim. R. 32(C).

{¶ 4} The trial court overruled Wiley's motions in both cases. Specifically, the trial court stated that it had "examined the original termination entries in [both] cases" and found that "[e]ach bears the judge's signature." Accordingly, the trial court found that Wiley's sentences in Case Nos. 2005 CR 3324 and 2006 CR 4157 were not void for want of the trial judge's signature.

{¶ 5} It is from this judgment that Wiley now appeals.

{¶ 6} Because they are interrelated, Wiley's first and second assignments of error will be discussed together as follows:

{¶ 7} "THE TRIAL COURT ERRED IN FINDING THAT THE ORIGINAL TERMINATION ENTRIES DO BEAR THE JUDGE'S SIGNATURE WHERE THE COPIES ATTACHED TO APPELLANT'S PLEADING ARE CERTIFIED COPIES REPRESENTING TRUE COPIES OF THE ACTUAL ENTRIES ON FILE AND IT HAS A STAMP, NOT A SIGNATURE."

{¶ 8} "THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED AS A MATTER OF LAW IN FAILING [TO] ORDER A DE NOVO RESENTENCING."

{¶ 9} In his first assignment, Wiley contends that his judgment entries of conviction contain rubber stamp block signatures, and therefore, fail to comply with Crim. R. 32(C). Thus, Wiley argues that he is entitled to a de novo re-sentencing hearing in both Case Nos. 2005 CR 3324 and 2006 CR 4157.

{¶ 10} In State v Owens, 2d Dist. Montgomery No. 24817, 2012-Ohio-3288, the defendant had filed a petition for post-conviction relief and attached his copy of the judgment entry of conviction that had been certified by the clerk of courts as a correct copy. A rubber stamp of the printed judge's name appeared on the signature line of the entry. The trial court reviewed the long-standing practice ...


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