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State v. Pierce

Court of Appeals of Ohio, Second District, Montgomery

December 15, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JAMES E. PIERCE Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2004-CR-2747/1

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH,, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee,

          JAMES E. PIERCE Defendant-Appellant-Pro Se.

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant, James Pierce, appeals pro se from the trial court's decision of September 19, 2016, in which the court: (1) overruled his motion for resentencing pursuant to Crim.R. 52(B); (2) overruled his motion for a modification of the order directing him to pay costs; and (3) overruled his motion for resentencing pursuant to R.C. 2967.28. Finding that Pierce's assignments of error lack merit, we affirm.

         I. Facts and Procedural History

         {¶ 2} On November 17, 2004, a Montgomery County grand jury issued an indictment charging Pierce with one count of abduction; one count of aggravated burglary; one count of aggravated murder; two counts of aggravated robbery; two counts of felonious assault with a deadly weapon; one count of having a weapon while under disability; and two counts of kidnapping. All of the charges, other than those for abduction and having a weapon while under disability, included firearm specifications. At the State's request, the court entered a nolle prosequi of Count One of the indictment, which was the charge for abduction.

         {¶ 3} After a jury trial, held between January 30 and February 6, 2006, Pierce was found guilty as charged on all remaining counts.[1] The court sentenced him to serve an aggregate term of imprisonment of 51 years to life, and ordered that he serve mandatory periods of postrelease control.

         {¶ 4} On February 22, 2006, Pierce moved for a new trial. The court denied Pierce's motion in a decision entered on April 5, 2006, and six days later, Pierce appealed the decision to this court. Raising two assignments of error, Pierce contended that the trial court improperly disregarded newly discovered evidence when it overruled his motion, and in the alternative, that his convictions were against the manifest weight of the evidence. State v. Pierce, 2d Dist. Montgomery No. 21561, 2007-Ohio-1749, ¶ 1, 6 and 14. We affirmed the trial court. See id. at ¶ 17.

         {¶ 5} Presumably in response to the Ohio Supreme Court's decision in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the trial court filed an amended, nunc pro tunc termination entry on March 26, 2010. The amended termination entry, unlike the original, specified the manner of Pierce's convictions. Pierce appealed from the amended entry in Case No. CA 24278, but we dismissed the case for want of a final appealable order.

         {¶ 6} On February 14, 2011, Pierce filed a motion with the trial court seeking production of a transcript of the testimony presented to the grand jury that had indicted him in November, 2004. The trial court overruled his motion, prompting Pierce to launch a third appeal. We dismissed the case on jurisdictional grounds. State v. Pierce, 2d Dist. Montgomery No. 25199, 2013-Ohio-1372, ¶ 5-6 and 17-18.

         {¶ 7} On June 11, 2013, Pierce filed a notice of appeal (Case No. CA 25793) from the trial court's original termination entry of February 28, 2006, simultaneously requesting leave for a delayed appeal under App.R. 5(A). We overruled Pierce's motion for leave and dismissed the case.

         {¶ 8} Pierce's instant appeal relates to three motions decided by the trial court: his motion for resentencing pursuant to Civ.R. 52(B) of March 27, 2015; his motion for a modification of the order directing him to pay costs of January 28, 2016; and his motion for resentencing pursuant to R.C. 2967.28. The court overruled these motions in its decision of September 19, 2016. Under App.R. 5(A), we allowed Pierce a delayed appeal from the court's decision and accepted the notice of appeal he had filed on April 17, 2017.

         II. ...


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