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State v. Battin

Court of Appeals of Ohio, Tenth District

June 28, 2018

State of Ohio, Plaintiff-Appellee,
v.
James L. Battin, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 15CR-835

          On brief: Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond, for appellee.

          On brief: James L. Battin, pro se.

          DECISION

          LUPER SCHUSTER, J.

         {¶ 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.

         I. 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. 2941.145(A).

         {¶ 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 and sentence.

         {¶ 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.

         II. Assignments of Error

         {¶ 8} Battin assigns the following ...


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