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State v. Ducker

Court of Appeals of Ohio, Fifth District

August 12, 2013

STATE OF OHIO Plaintiff-Appellee
v.
JAMES N. DUCKER Defendant-Appellant

Appeal from the Stark County Court of Common Pleas, Case No. 2011CR1684

For Plaintiff-Appellee: JOHN D. FERRERO, JR.STARK CO. PROSECUTOR RONALD MARK CALDWELL

For Defendant-Appellant: KRISTINA SUPLER Friedman & Frey, LLC

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

OPINION

Delaney, J.

(¶1} Appellant James N. Ducker appeals from the June 22 and June 28, 2012 judgment entries of conviction and sentence in the Stark County Court of Common Pleas. Appellee is the state of Ohio. This case is related to State v. Ducker, 5th Dist. Stark No. 2012CA00193.

FACTS AND PROCEDURAL HISTORY

(¶2} A statement of the facts underlying appellant's criminal convictions is not necessary to our resolution of this appeal.

(¶3} On November 15, 2011, appellant was charged by indictment with one count of illegal use of a minor in a nudity-oriented material or performance [R.C. 2907.323(A)(1), a felony of the second degree)]; one count of unlawful sexual conduct with a minor [R.C. 2907.04(A), a felony of the third degree]; and one count of disseminating material harmful to juveniles [R.C. 2907.31(A)(1), a felony of the fifth degree].[1] Appellant entered pleas of not guilty and a trial was scheduled for April 2012. In the meantime, appellant was free on a personal recognizance bond.

(¶4} During pretrial proceedings, appellant's original defense trial counsel moved to withdraw and appellant retained new counsel. The trial date was continued to May 2012.

(¶5} While the original case was pending, appellant was charged by indictment with one count of tampering with evidence [R.C. 2921.12(A)(2), a felony of the third degree].[2] Because appellant committed this offense while on bond in the original case, the trial court revoked appellant's bond on May 14, 2012 and appellant remained incarcerated during pretrial proceedings.

(¶6} Also during the May 14, 2012 pretrial, defense trial counsel moved for a competency examination and appellant was ultimately found competent to stand trial.

(¶7} On June 20, 2012, a change-of-plea hearing was held in both cases; the trial court addressed the original charges and the tampering with evidence charge simultaneously. Appellant entered pleas of guilty as charged and was sentenced two days later to an aggregate prison term of eight years; appellant was also designated a Tier II sexual offender. The trial court noted appellant's sentence as follows: four years upon the count of count of illegal use of a minor in a nudity-oriented material or performance (Count I); 24 months upon the count of unlawful sexual conduct with a minor (Count II); 12 months upon the count of disseminating material harmful to juveniles (Count III); and 24 months on the count of tampering with evidence. Counts 1 and 2 are to be served consecutively, and consecutive to the term of 24 months on the separate tampering offense. Count III is to be served concurrently.

(ΒΆ8} We permitted appellant to file a delayed appeal from the judgment entry of sentence and conviction but denied his motion to consolidate both appeals. This opinion, therefore, addresses only appellant's appeal from the sentences in the ...


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