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State v. Battin

Court of Appeals of Ohio, Tenth District

June 4, 2019

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

          APPEAL from the Franklin County (C.P.C. No. 15CR-835) Court of Common Pleas

         On brief:

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

          James L. Battin, pro se.

          DECISION

          SADLER, J.

         {¶ 1} Defendant-appellant, James L. Battin, appeals the decision of the Franklin County Court of Common Pleas denying appellant's motion to correct an illegal sentence. For the following reasons, we affirm the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant's appeal concerns whether the trial court's consideration of his two pro se motions, which he filed while represented by counsel, rendered his subsequent sentence and conviction "illegal" and/or "void." (Oct. 18, 2018 Mot. to Correct Illegal Sentence at 1.)

         {¶ 3} In February 2015, appellant was indicted for kidnapping and rape, both with associated firearm specifications. Represented by appointed counsel, appellant initially entered a plea of not guilty. In March 2015, defense counsel for appellant filed a "Motion for Bail" seeking a reduction in the surety bond. (Mar. 5, 2015 Mot. at 1.) A couple of days later, on March 9, 2015, appellant filed his own "Motion for Bond Reduction" also asking the trial court to lower his surety bond. (Mar. 9, 2015 Mot. at 1.) A case processing sheet filed the same day as the scheduled bond hearing notes "no change" in bond. (Mar. 19, 2015 Processing Sheet at 1.) On March 15, 2015, while he was apparently still represented by counsel, appellant filed another motion on his own, this time asking for the trial court to order internet access for him while in jail.

         {¶ 4} A criminal processing sheet filed on June 10, 2015, the date set for trial, notes a change in the cash/surety bond from $1, 000, 000 to $750, 000. Appellant attempted to appeal the June 10, 2015 order, but this court dismissed the notice of appeal as untimely filed. On June 17, 2015, the trial court filed an entry denying appellant's motion for internet usage.

         {¶ 5} Pursuant to a plea agreement and while he was represented by counsel, on March 16, 2016, appellant entered a plea of guilty to the "stipulated lesser included offense of Felonious Assault" with a firearm specification. (Mar. 16, 2016 Entry of Guilty Plea at 1.) The prosecution and defense jointly recommended a sentence. By a judgment entry dated March 21, 2016, the trial court found appellant guilty of felonious assault, ordered a nolle prosequi entered for the kidnapping count, and sentenced appellant according to the jointly recommended sentence.

         {¶ 6} On September 26, 2017, appellant filed a motion to vacate his conviction and sentence and to dismiss the indictment with prejudice. Within it, appellant argued the trial court exceeded its jurisdiction in accepting his guilty pleas when felonious assault was not pled in the indictment. The trial court denied the motion on November 28, 2017 and, on December 21, 2017, denied appellant's additional motion for an evidentiary hearing on the matter. Appellant filed a timely notice of appeal of the trial court's November 28, 2017 judgment. In State v. Battin, 10th Dist. No. 17AP-911, 2018-Ohio-2533 ("Battin I"), this court agreed with appellee and the trial court that appellant's motion should be construed as an untimely petition for postconviction relief under R.C. 2953.21(A). Therefore, we found the trial court lacked jurisdiction to entertain appellant's petition and did not err in denying appellant's petition.

         {¶ 7} On December 27, 2017, appellant filed a notice of appeal from the March 16, 2016 judgment of conviction. This court, construing his notice of appeal as a motion for delayed appeal, denied appellant's motion.

         {¶ 8} On May 16, 2018, appellant filed a motion to correct illegal sentence requesting the trial court issue an order declaring his sentence and conviction void based on the argument that felonious assault is not a lesser-included offense of rape. The trial court denied the motion on May 29, 2018, and appellant appealed. Noting case law showing it is legally permissible for a defendant to plead guilty to a crime that has not been indicted, in State v. Battin, 10th Dist. No. 18AP-402, 2018-Ohio-3947("Battin ...


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