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State v. Walker

Court of Appeals of Ohio, Fifth District, Richland

November 13, 2017

STATE OF OHIO Plaintiff-Appellee
v.
GARY D. WALKER Defendant-Appellant

         Appeal from the Richland County Common Pleas Court, Case No. 2009CR0052D

          For Plaintiff-Appellee GARY BISHOP Prosecuting Attorney, Richland County, Ohio By: JOSEPH C. SNYDER Assistant Prosecuting Attorney

          For Defendant-Appellant GARY D. WALKER, PRO SE

          JUDGES: Hon. Patricia A. Delaney, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.

          OPINION

          HOFFMAN, J.

         {¶1} Defendant-appellant Gary D. Walker appeals the judgment entered by the Richland County Common Pleas Court overruling his request for waiver of court costs and overruling his request for waiver of restitution in the amount of $20, 000, but granting the motion in the amount of $12, 538. Appellee is the state of Ohio.

         STATEMENT OF THE CASE[1]

         {¶2} This case arose from a scheme in which appellant directed others to cash forged federal stimulus checks at Wal-Marts throughout Ohio. On June 2, 2009, after the commencement of a jury trial in the Richland County Common Pleas Court, Appellant pled guilty to forty-seven felony counts, including engaging in a pattern of corrupt activity, forgery, and theft. He was sentenced to an aggregate term of imprisonment of twelve years, and ordered to pay restitution in the amount of $32, 538.

         {¶3} On March 15, 2016, the U.S. District Court for the Southern District of Ohio, Western Division, granted Appellant a conditional writ of habeas corpus, ordering Appellant to be released unless he was granted a new direct appeal of the Richland County conviction, with appointed counsel, within 180 days. Walker v. Warden, Lake Erie Correctional Institution, S.D.Ohio No. 1:13cv159 (Mar. 15, 2016). We reopened Appellant's direct appeal on April 12, 2016.

         {¶4} Appellant assigned eight errors on the reopened appeal. We vacated the trial court orders to pay court costs and restitution, and remanded the case to the trial court for the limited purposes of 1) allowing Appellant to move the court to waive payment of court costs, and 2) permitting the trial court to consider Appellant's present and future ability to pay $32, 538 in restitution. State v. Walker, 5th Dist. Richland No. 09CA88, 2016-Ohio-8615, ¶ 62. In all other respects we affirmed Appellant's convictions and sentences.

         {¶5} The trial court held a hearing on March 13, 2017, on the issue of restitution and court costs. Following the hearing, the trial court amended restitution from $32, 538 to $20, 000, and left the order to pay court costs in place. Appellant filed a writ of mandamus with this Court seeking a final appealable order in compliance with State v. Baker, 119 Ohio St.3d 197, 893 N.E.2d 163, 2008-Ohio-3330. Appellant also filed a direct appeal from the judgment entry in Appellate Case Number 17CA32.

         {¶6} The trial court issued a nunc pro tunc sentencing entry on May 31, 2017, incorporating its restitution order of March 29, 2017, with its 2009 sentencing entry. The writ of mandamus was thereafter dismissed, and Appellant filed a notice of appeal from the May 31, 2017 entry in Appellate Case Number 17CA53. We consolidated Case Numbers 17CA32 with 17CA53, with Case Number 17CA53 controlling.

         {¶7} It is from the May 31, 2017 entry Appellant prosecutes this appeal, assigning the following as error:

"I. THE TRIAL COURT ERRED BY ISSUING A NON-FINAL APPEALABLE ORDER [THE MARCH 29, 2017 ORDER] WHICH DEPRIVED THIS APPELLATE COURT SUBJECT-MATTER JURISDICTION OVER THE APPEAL IN STATE V. WALKER, RICHLAND APP. NO. 2017-CA-0032.
"II. THE TRIAL COURT VIOLATED THE CONFRONTATION CLAUSE TO THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION, THE DUE PROCESS CLAUSE TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND CRIM. R. 43(A) BY IMPOSING RESTITUTION AND COURT COST IN THE MAY 31, 2017 NUNC PRO TUNC SENTENCING ENTRY WITHOUT APPELLANT BEING PRESENT.
"III. THE TRIAL COURT COMPLETELY DEPRIVED APPELLANT EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY IMPOSING RESTITUTION AND COURT COST IN THE MAY 31, 2017 NUNC PRO TUNC SENTENCING ENTRY WITHOUT COUNSEL BEING PRESENT.
"IV. THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY CLAUSE TO THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION BY INCREASING APPELLANT'S SENTENCES ON COUNTS 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 45, 46, 47 AND 48, WITH RESTITUTION AFTER APPELLANT COMPLETED HIS SENTENCES FOR THOSE COUNTS.
"V. THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING IN COMPLIANCE WITH R.C. 2929.28(A)(1) WHEN APPELLANT DISPUTED THE AMOUNT OF RESTITUTION.
"VI. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY FAILING TO AFFORD APPELLANT NOTICE AND THE OPPORTUNITY TO BE HEARD REGARDING EVIDENCE THE COURT USED TO MODIFY AND CALCULATE THE RESTITUTION SENTENCE IN THE MAY 31, 2017 NUNC PRO TUNC SENTENCING ENTRY.
"VII. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE JUDICIAL FINDINGS ...

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