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State v. Bankston

Court of Appeals of Ohio, Tenth District

September 30, 2013

State of Ohio, Plaintiff-Appellee,
v.
Deryk C. Bankston, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 07CR-05-3229).

Ron O'Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.

Deryk C. Bankston, pro se.

DECISION

SADLER, J.

(¶ 1} Defendant-appellant, Deryk C. Bankston, appeals from a judgment of the Franklin County Court of Common Pleas denying his "motion for sentencing to correct a fundamental miscarriage of justice." For the reasons that follow, we affirm the judgment of the trial court.

I. BACKGROUND

(¶ 2} By indictment filed May 4, 2007, appellant was charged with five counts of aggravated robbery, five counts of kidnapping, and one count of aggravated burglary, all with corresponding firearm specifications. Additionally, appellant was charged with one count of carrying a concealed weapon. The charges arose from conduct occurring on April 22, 2007. On this date, five persons were at an apartment smoking marijuana when appellant and two other men approached the front door and asked to purchase some. State v. Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 2. When told no marijuana was available for sale, appellant and the two men left, but returned a few minutes later. Id. According to witnesses, the men brandished guns, forced the apartment's occupants into various rooms of the apartment, and then left the apartment with money and property belonging to the victims.

(¶ 3} A jury found appellant guilty on all counts, including firearm specifications, except for the carrying a concealed weapon charge for which a nolle prosequi was entered upon application of plaintiff-appellee, state of Ohio. Id. at ¶ 3. Appellant was sentenced to an aggregate prison term of 12 years. A judgment entry reflecting the convictions and sentence was filed on July 11, 2008.

(¶ 4} In his direct appeal, appellant argued that his convictions were against the manifest weight of the evidence because the witnesses' credibility was suspect and that the trial court erred in refusing to give his requested jury instruction. Id. at ¶ 3. This court rejected appellant's arguments and, on February 19, 2009, affirmed the judgment of the trial court. The Supreme Court of Ohio declined a discretionary appeal in State v. Bankston, 122 Ohio St.3d 1456, 2009-Ohio-3131.

(¶ 5} On September 28, 2012, appellant filed a motion for sentencing arguing, though the trial court's judgment entry states he was convicted of 11 counts, because only two jury verdicts were filed, he can only be sentenced on those two offenses. Appellant also argued the trial court failed to properly impose post-release control and failed to advise him of his appellate rights. The trial court found not only that the record refuted each of appellant's arguments, but also that res judicata barred appellant from raising these issues. Consequently, the trial court denied appellant's motion.

II. ASSIGNMENTS OF ERROR

(¶ 6} Appellant timely appealed and brings the following two assignments of error for our review:

[I.] Whether a jury's verdict must be "filed" (pursuant to: O.R.C. § 2303.08); and "journalized" (pursuant to: Crim. R. 32(B) and (C)) before inclusion or articulation on a subsequent written judgment entry. see: Schenley v. Kauth (1953), 160 Ohio St. 109, 113 N.E.2d 625; and, State v. Yontz, 96 N.E.2d 265, 87 Ohio App. 526. see also: U.S.C.A. Const. Amend. 14.
[II.] Whether the failure to advise a criminal defendant of the *consequences of a violation of a postrelease control sanction, i.e. 'in nine month increments, ' O.R.C. § 2943.032(E); and, 'up to fifty percent of the original sentence, ' Woods v. Telb (2000), 89 Ohio St.3d 511 (including the failure to give any notification as per appellate rights: Crim. R. 32(B)) renders the ...

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