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State v. Wagner

Court of Appeals of Ohio, Fifth District

August 7, 2013

STATE OF OHIO Plaintiff-Appellee
v.
STEVEN WAGNER Defendant-Appellant

Appeal from the Fairfield County Court of Common Pleas, Case Nos. 98-CR-65 & 98-CR-144

For Plaintiff-Appellee: GREGG MARX, FAIRFIELD COUNTY PROSECUTOR, JOCELYN S. KELLY

For Defendant-Appellant: STEVEN WAGNER, PRO SE Inmate No. 361523

JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Patricia A. Delaney, J.

OPINION

Delaney, J.

(¶1} Appellant Steven Wagner appeals from the January 15, 2013 judgment entry of the Fairfield County Court of Common Pleas denying his motion to correct sentence. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

(¶2} A statement of the facts underlying appellant's original convictions is unnecessary to our disposition of this appeal.

(¶3} In June 1998, appellant was found guilty upon trial by jury of abduction, felonious assault, and assault in Fairfield County Court of Common Pleas case no. 98 CR 65. On June 10, 1998, he was sentenced to an aggregate prison term of ten years: three years upon the count of abduction to be served consecutively with seven years upon the count of felonious assault. The trial court found merged the count of assault. Appellant filed a direct appeal of his conviction and sentence in State v. Wagner, 5th Dist. Fairfield No. 98CA42, 1999 WL 436749 (May 24, 1999). Appellant served his entire imposed sentence as of June 2008.

(¶4} Appellant remained incarcerated due to a sentence imposed in a separate case, Fairfield County Court of Common Pleas case no. 98 CR 144. In that case, appellant was convicted of three counts of intimidation of a victim or witness and one count of retaliation against the complainant in his original case. Appellant was sentenced to an aggregate prison term of nine years in the latter case, to be served consecutively to the original 10-year term. We affirmed appellant's second conviction upon his direct appeal in State v. Wagner, 5th Dist. Fairfield No. 99CA23, 2000 WL 1411 (Dec. 23, 1999), appeal not allowed, 88 Ohio St.3d 1480, 727 N.E.2d 131 (2000).

(¶5} In 2005, appellant filed a petition for post-conviction relief based upon Blakely; the trial court denied the petition and we affirmed the decision in State v. Wagner, 5th Dist. Fairfield No. 05-CA-45, 2005-Ohio-5209, appeal not allowed, 108 Ohio St.3d 1440, 2006-Ohio-421, 842 N.E.2d 64. Another attempt at post-conviction relief was denied in 2006 and affirmed in State v. Wagner, 5th Dist. Fairfield No. 06-CA-73, 2007-Ohio-3629.

(¶6} On November 27, 2012, appellant filed a "Motion to Correct Sentence" under both case numbers, although his arguments addressed only his sentence in the earlier case, 98-CR-65. The trial court overruled the motion on the bases that the motion is an untimely petition for post-conviction relief and appellant's arguments based upon State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 do not apply retroactively to his sentence.

(ΒΆ7} Appellant now appeals from the January 15, 2013 entry ...


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