Criminal Appeal from the Lake County Court of Common Pleas, Case No. 03 CR 000650.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, (For Plaintiff-Appellee).
Michael A. Stalnaker, pro se, (Defendant-Appellant).
THOMAS R. WRIGHT, J.
(¶1} This appeal is from a final judgment in a criminal case before the Lake County Court of Common Pleas. Appellant, Michael A. Stalnaker, seeks reversal of the trial court's denial of his motion to "correct" an unlawful sentence. Specifically, he maintains that the trial court should have declared his present sentence void because, at the time of his sentencing, the trial court failed to merge certain offenses as allied offenses of similar import under R.C. 2941.25.
(¶2} In December 2003, the county grand jury indicted appellant on 5 counts of rape, 6 counts of gross sexual imposition, and 6 counts of furnishing alcohol to a minor. In the ensuing trial, the jury found appellant guilty on all 17 counts. The trial court then sentenced him to an aggregate prison term of 33 years.
(¶3} Appellant pursued a direct appeal of his convictions to this court. In State v. Stalnaker, 11th Dist. Lake No. 2004-L-100, 2005-Ohio-7042, we affirmed the convictions and the imposed sentence in all respects. In regard to his sentence, although appellant contended that the trial court failed to follow the correct procedure for imposing prison terms longer than the statutory minimum, he never asserted any arguments concerning the "merger" issue.
(¶4} After the issuance of our opinion, this court certified a conflict to the Ohio Supreme Court as to the constitutionality of judicial fact-finding during the imposition of sentence. Appellant also submitted a separate notice of appeal to the Supreme Court. However, after ruling on the issue of judicial fact-finding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme Court dismissed both the certified question and appellant's separate appeal. State v. Stalnaker, 109 Ohio St.3d 1420, 2006-Ohio-1967; State v. Stalnaker, 109 Ohio St.3d 1427, 2006-Ohio-1967.
(¶5} One year after the end of the Supreme Court proceedings, appellant filed a federal habeas corpus action. In Stalnaker v. Bobby, 589 F.Supp.2d 905 (N.D.Ohio 2008), the district court held that appellant's constitutional rights were violated when the trial court engaged in improper judicial fact-finding as part of its determination to impose prison terms longer than the statutory minimum. In light of this holding, appellant's case was remanded to the trial court for resentencing. Upon conducting a new sentencing hearing, the trial court rendered a new final judgment sentencing appellant again to an aggregate prison term of 33 years.
(¶6}Appellant pursued a second appeal to this court, raising five assignments as to the propriety of his new sentence. Again, none of them addressed the question of whether the trial court committed plain error when it did not merge any of the 17 crimes as allied offenses of similar import. Upon due consideration, this court upheld the sentence in all respects. State v. Stalnaker, 11th Dist. Lake No. 2009-L-039, 2009-Ohio-5215.
(¶7} Over the next three years, appellant submitted a series of post-judgment motions, all of which were denied by the trial court. In the last of these motions, filed in November 2012, he moved the court to "correct" his sentence on the grounds that it was unlawful under R.C. 2941.25. Specifically, appellant argued that his sentence must be declared void because, prior to imposing the separate prison terms, the trial court failed to merge the multiple offenses of rape and gross sexual imposition. According to him, the crimes of rape and gross sexual imposition were allied offenses of similar import.
(¶8} After the state filed its response, the trial court rendered its final judgment denying the motion to correct the illegal sentence. As the primary basis for its decision, the trial court concluded that appellant was barred under res judicata from asserting the "merger" issue in a post-judgment motion because such an issue could have been, but was not, raised on direct appeal.
(¶9} In appealing the denial of his post-judgment motion, appellant raises one assignment of error for review:
(¶10} "The trial court erred by denying the defendant's sentence is unauthorized by law, voidable, prohibited by law, and the sentence ...