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State v. Wilson

Court of Appeals of Ohio, Second District, Montgomery

November 9, 2017

STATE OF OHIO Plaintiff-Appellee
v.
LAWRENCE E. WILSON Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 1996-CR-1019

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

          LAWRENCE E. WILSON, Inmate No. A349-229, Franklin Medical Center, P.O. Box 23658, Columbus, Ohio 43223 Defendant-Appellant-Pro Se

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Lawrence Wilson appeals from a decision of the Montgomery County Court of Common Pleas denying his motion to vacate judgment and request for Grand Jury testimony. For the following reasons, we affirm.

         I. Facts and Procedural History

         {¶ 2} In 1997, Wilson was convicted of rape of a person under thirteen years of age. Following Wilson's direct appeal, we affirmed the conviction and sentence. State v. Wilson, 2d Dist. Montgomery Nos. 16728, 16752, 1998 WL 639100, * 1 (Aug. 7, 1998). Since then, Wilson has repeatedly sought review of his conviction and sentence with this court, the Fourth District Court of Appeals, the Ohio Supreme Court, and the federal courts to review his conviction.[1] He has used various procedural mechanisms including a request for reconsideration, numerous petitions for post-conviction relief, and petitions for extraordinary writs of mandamus, procedendo and habeas corpus. See State v. Wilson, 2d Dist. Montgomery No. 17515, 1999 WL 173551 (Mar. 31, 1999); State ex rel. Wilson v. Sunderland, 87 Ohio St.3d 548, 2000-Ohio-479, 721 N.E.2d 1055 (2000); State v. Wilson, 2d Dist. Montgomery No. 21738, 2007-Ohio-4885, appeal not accepted for review, 117 Ohio St.3d 1405, 2008-Ohio-565, 881 N.E.2d 274 (Table); State v. Wilson, 2d Dist. Montgomery No. 23247, 2009-Ohio-7035; State v. Wilson, 2d Dist. Montgomery No. 24352, 2011-Ohio-599. None of these actions have been successful.

         {¶ 3} Wilson, turning to the instant appeal, filed a motion on December 16, 2016, to vacate his judgment and sentence in which he argues that his sentence is void because (1) he was improperly and excessively sentenced; (2) the trial court improperly entered a nunc pro tunc order amending the original termination entry and adding an additional two years to his sentence; (3) the trial court violated Crim.R. 43(A) by resentencing him via the nunc pro tunc entry without having him present; (4) the guilty verdict did not state the degree of the offense; (5) the indictment was defective; (6) the trial court did not give an instruction on a lesser included offense; (7) the victim recanted; (8) his waiver of counsel was invalid and trial counsel was ineffective; and (9) he was not permitted to allocute at sentencing.

         {¶ 4} Additionally, on December 23, 2016, Wilson filed a request for Grand Jury transcripts. He argued that the indictment was defective because it did not name or identify the offense for which the Grand Jury indicted him. He further contends that the victim later recanted her testimony at trial, and thus, he is entitled to view her testimony before the Grand Jury.

         {¶ 5} The trial court, citing the doctrine of res judicata, overruled the motion to vacate and denied the request for transcripts by entry filed January 25, 2017. Wilson filed a timely appeal.

         II. Claims Barred by Res Judicata

         {¶ 6} Wilson's first, second, third and fourth assignments of error state as follows:

DID THE TRIAL COURT ERR IN DENYING DEFENDANT-APPELLANTS MOTION TO VACATE THE VOID JUDGMENT AND SENTENCE?
DID THE TRIAL COURT ERR BY FAILING TO HOLD A HEARING PURSUANT TO CRIM.R. 43(A) WHEN IT CORRECTED THE JUDGMENT ENTRY'S [SIC] WITHOUT DEFENDANT-APPELLANT BEING PRESENT? DID THE TRIAL COURT ERR WHEN THE WAIVER OF ...

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