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State v. Buxton

Court of Appeals of Ohio, Fifth District, Ashland

May 29, 2018

STATE OF OHIO Plaintiff-Appellee
v.
DENNY R. BUXTON Defendant-Appellant

          Appeal from the Court of Common Pleas, Case No. 04-CRI-089 J

          For Plaintiff-Appellee VICTOR R. PEREZ

          For Defendant-Appellant DENNY R. BUXTON, Pro Se Inmate No. 474-788 Grafton Correctional Institution

          JUDGES: Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Defendant-Appellant, Denny R. Buxton, appeals the February 2, 2018 judgment entry of the Court of Common Pleas of Ashland County, Ohio, denying his pro se motion captioned "Judicial Notice Plain Error Criminal Rule 52(B) Motion to Vacate Void Sentence Incorporating Motion to Withdraw Guilty Plea Pursuant to Criminal Rule 32.1" and his pro se motion for judgment on the pleadings pursuant to Civ.R. 12(C). Plaintiff-Appellee is the state of Ohio.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} On April 11, 2005, appellant pled guilty to two counts each of burglary and attempted grand theft in violation of R.C. 2911.12 and 2913.02/2923.02, respectively. In the plea that he signed, appellant was advised that he was subject to five years of mandatory postrelease control and the consequences for violating postrelease control. A sentencing hearing was held on same date. By judgment entry filed April 15, 2005, the trial court sentenced appellant to an aggregate term of ten years in prison. Although the entry stated appellant was advised during the hearing of postrelease control and the consequences for violating postrelease control, the entry was silent as to the details.

         {¶ 3} Appellant filed an appeal, challenging his sentence. This court reversed the sentence and remanded the matter to the trial court for resentencing in accordance with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1. State v. Buxton, 5th Dist. Ashland No. 05COA020, 2006-Ohio-2521.

         {¶ 4} A resentencing hearing was held on July 24, 2006. Appellant voluntarily withdrew his request for resentencing. By judgment entry filed August 3, 2006, the trial court sentenced appellant to the same sentence, and did not mention postrelease control.

         {¶ 5} On November 9, 2009, appellee filed a motion to resentence appellant to properly impose postrelease control in light of the decision in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254, and/or R.C. 2929.191. By nunc pro tunc sentencing judgment entry filed June 8, 2010, the trial court included the details concerning the advisement of postrelease control given to appellant during the April 11, 2005 sentencing hearing (mandatory five years and the consequences for violating). In the nunc pro tunc entry, the trial court noted that such entry "does not change or modify the Defendant's original sentence in any way. It simply contains the exact advisements given to the Defendant concerning post-release control at his original sentencing hearing."

         {¶ 6} On June 21, 2017, appellant filed a pro se motion captioned "Judicial Notice Plain Error Criminal Rule 52(B) Motion to Vacate Void Sentence Incorporating Motion to Withdraw Guilty Plea Pursuant to Criminal Rule 32.1, " contesting the imposition of postrelease control. On October 10, 2017, appellant filed a pro se motion for judgment on the pleadings pursuant to Civ.R. 12(C) on the issue of postrelease control. By judgment entry filed February 2, 2018, the trial court denied the motions.

         {¶ 7} Appellant filed a pro se appeal and this matter is now before this court for consideration. ...


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