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State v. Creech

Court of Appeals of Ohio, Fourth District

August 27, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
SCOTT D. CREECH, Defendant-Appellant.

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED

COUNSEL FOR APPELLANT: Elizabeth N. Gaba [1]

COUNSEL FOR APPELLEE: Mark E. Kuhn, Scioto County Prosecuting Attorney, and Julie Cooke Hutchinson, Scioto County Assistant Prosecuting Attorney

DECISION AND JUDGMENT ENTRY

Peter B. Abele, Judge

(¶ 1} This is an appeal from a Scioto County Common Pleas Court judgment that overruled motions (1) to vacate sentence, and (2) to file a delayed motion for postconviction relief Scott D. Creech, defendant below and appellant herein, assigns the following errors for review[2]:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTION TO VACATE THE CONVICTION, AND FURTHER BY NOT FINDING THAT APPELLANT'S JUDGMENT OF CONVICTION AND SENTENCE IN 461 WAS VOID AB INITIO AND AS SUCH THAT THE COURT COULD VACATE THE VOID JUDGMENT AT ANY TIME. THE COURT'S ACTIONS VIOLATED APPELLANT'S 5th, 6th AND 14th AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AND HIS RIGHTS UNDER ARTICLE 1, SECTIONS 10, 15 AND 16 OF THE OHIO CONSTITUTION."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTION TO VACATE THE CONVICTION AND FURTHER BY NOT FINDING THAT APPELLANT'S JUDGMENT OF CONVICTION AND SENTENCE IN 461 WAS VOID AB INITIO. [sic] AS A MATTER OF LAW, WHEN A TERMINATION ENTRY FAILS TO CONFORM TO THE MANDATES OF CRIM.R. 32(C), IT IS NOT A FINAL APPEALABLE ORDER AND THEREFORE THERE HAS NOT BEEN EITHER A SENTENCE OR A CONVICTION."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY NOT FINDING THAT CASE 461 SHOULD HAVE BEEN DISMISSED FOR STATUTORY AND CONSTITUTIONAL SPEEDY TRIAL VIOLATIONS. THE COURT'S ACTIONS VIOLATED APPELLANT'S 5th, 6th AND 14th AMENDMENT RIGHTS UNDER THE U.S. CONSTITUTION AND HIS RIGHTS UNDER THE OHIO CONSTITUTION."
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTION FOR LEAVE TO LATE-FILE [sic] FOR POSTCONVICTION RELIEF"

(¶ 2} On March 31, 2008, the Scioto County Grand Jury returned an indictment that charged appellant with: (1) the illegal possession of chemicals for the manufacture of methamphetamine in violation of R.C. 2925.041(A); (2) the illegal manufacture of methamphetamine in violation of R.C. 2925.04(A)/(C)(2); (3) four counts of possession of a weapon or dangerous ordinance while under a disability in violation of R.C. 2923.13(A); (4) the illegal manufacture of explosives in violation of R.C. 2923.17(B); and (5) trafficking of methamphetamine in violation of R.C. 2925.03(A)(C)(1)(a). That indictment was filed under Case Number 08-CR-291 (291).

(¶ 3} On April 30, 2008, the Scioto County Grand Jury returned a second indictment. This indictment is virtually identical to 291, except for a change to the mens rea in count ten. The second indictment was filed in Case Number 08-CR-461 (461).[3] Apparently, as these proceedings wound their way through the trial court, some filings were made in 291 and some in 461.

(¶ 4} On August 12, 2008, 461 was consolidated for trial with criminal cases against Lisa Pollitt and Terry L. Martin. The matter came on for trial in September and October 2008. At the conclusion of the trial, the jury found appellant guilty on ten of the eleven counts.[4] The verdict forms, however, all bore Case Number 291 rather than Case Number 461.[5]

(¶ 5} On October 10, 2008, a judgment entry filed in 461 dismissed the remaining count and sentenced appellant to serve a cumulative total of nineteen years in prison. The trial court also filed a November 3, 2008 entry that ordered that the verdict forms be amended to include the correct 461 case number, rather than the earlier (291) case number.

(¶ 6} A notice of appeal, bearing the 461 case number, was filed on November 13, 2008. We dismissed that appeal because it was filed out of rule. The Scioto County Clerk of Courts filed our dismissal entry with case number 461 hand-written on the entry. Later, we granted leave to pursue a delayed appeal. Materials filed in pursuit of such leave bear the trial court's 461 case number and display a handwritten case number of 09CA3291. We ultimately ruled that several of the offenses should have merged, as allied offenses of similar import, for purposes of sentencing and, thus, we affirmed in part and reversed in part the trial court's judgment. State v. Creech , 188 Ohio App.3d 513, 936 N.E.2d 79, 2010-Ohio- 2553 (4th Dist.) (Creech I).

(¶ 7} On June 1, 2011, appellant commenced the instant actions that form the basis for this appeal. Appellant filed a motion "to strike and vacate the supposed" jury verdicts and sentencing entry in case number 461. The gist of appellant's argument is that cases 291 and 461 never merged, that the only entry that set the case for trial was filed in 291 and that no trial was held in that case. Appellant further argued that all motions and continuances that would have extended the speedy trial limit were filed in 291 and, thus, if 461 is the actual case tried (in which no such motions or continuances had been filed), appellant's speedy trial rights had been violated.

(¶ 8} On July 14, 2011, appellant also filed a motion for leave to file "delayed petition for postconviction relief" In his motion, appellant stated that he adopted his arguments from the previous motion to vacate, but also sought leave if the court decided to treat that motion as a petition for postconviction relief In view of the confusing nature of the two cases, the trial court held a hearing (November 9, 2011) to try to sort things out and get "a better understanding of the facts."

(¶ 9} On July 5, 2012, the trial court issued a detailed decision and judgment that overruled the motion to vacate and denied leave of court to file a postconviction relief petition out of rule. Among other things, the court determined the two cases, in essence, merged into one another, the change of case numbers on the verdict forms simply corrected a clerical error and that no structural deficiency occurred in the trial court proceedings. The court also held that ...


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