from the Franklin County Court of Common Pleas No. 15CR-835
brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M.
Bond, for appellee.
brief: James L. Battin, pro se.
1} Defendant-appellant, James L. Battin, appeals
from a decision and entry of the Franklin County Court of
Common Pleas denying his motion to vacate his conviction and
sentence and dismiss his indictment. For the following
reasons, we affirm.
Facts and Procedural History
2} By indictment filed February 18, 2015,
plaintiff-appellee, State of Ohio, charged Battin with one
count of kidnapping in violation of R.C. 2905.01, a
first-degree felony; and one count of rape in violation of
R.C. 2907.02, a first-degree felony. Both charges contained
accompanying firearm specifications pursuant to R.C.
3} Battin ultimately entered into a plea agreement
with the state in which he entered a guilty plea to the
stipulated lesser-included offense of felonious assault, a
second-degree felony, and the accompanying three-year firearm
specification. The plea agreement included a jointly
recommended aggregate sentence of seven years in prison.
Following a March 16, 2016 hearing, the trial court imposed
the jointly recommended sentence of seven years, journalizing
Battin's convictions and sentence in a March 21, 2016
judgment entry. Battin did not file a timely direct appeal
from his conviction.
4} More than one year later, on September 26, 2017,
Battin filed a pro se motion to vacate his conviction and
sentence. Battin argued the trial court must vacate his
conviction and dismiss his indictment on the grounds that
felonious assault is not a lesser-included offense of rape.
Thereafter, Battin filed several miscellaneous pleadings. The
state filed a memorandum contra Battin's motion to vacate
his conviction and sentence, arguing the trial court should
construe Battin's motion as an untimely, successive
post-conviction petition and deny the petition.
5} In a November 28, 2017 decision and entry, the
trial court denied Battin's motion to vacate his
conviction and sentence. The trial court concluded the
doctrine of res judicata barred Battin's arguments and
was untimely under R.C. 2953.21(A)(2). Following the trial
court's decision and entry, on December 5, 2017, Battin
filed a memorandum in support of a motion for an evidentiary
hearing on his motion to vacate his conviction and sentence.
The trial court issued an entry on December 21, 2017 denying
Battin's motion for an evidentiary hearing, noting it had
already denied Battin's motion to vacate his conviction
6} On December 27, 2017, Battin filed a notice of
appeal and sought leave to file a delayed appeal from the
trial court's March 21, 2016 judgment entry to challenge
his convictions. This court denied Battin's motion for
delayed appeal. State v. Battin, 10th Dist. No.
17AP-910 (Jan. 23, 2018) (memorandum decision).
7} Also on December 27, 2017, Battin filed a timely
notice of appeal from the trial court's November 28, 2017
entry denying his motion to vacate.
Assignments of Error
8} Battin assigns the following ...