[Cite as State v. Pishok,
2012-Ohio-409.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-11-22
v.
DAVID J. PISHOK, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 01-CR-0188
Judgment Affirmed
Date of Decision: February 6, 2012
APPEARANCES:
David J. Pishok, Appellant
John M. Kahler, II for Appellant
Derek W. DeVine and Rhonda L. Best for Appellee
Case No. 13-11-22
SHAW, J.
{¶1} Defendant–appellant, David J. Pishok (“Pishok”), appeals the
November 23, 2010 Judgment Entry of the Seneca County Court of Common
Pleas, resentencing him to correct an error in the imposition of post-release
control.
{¶2} In July 2001, the Seneca County Grand Jury returned a nine-count
indictment against Pishok for various felonies associated with the armed robbery
of The Gallery antique store in Tiffin, Ohio. Pishok pled guilty to seven of the
nine criminal charges contained in the indictment, without any specifications. The
guilty plea was a negotiated plea, which further contained a sentencing
recommendation. Pishok was sentenced on January 15, 2002, to an aggregate
sentence of twenty-one years in prison.
{¶3} Pishok’s attorney failed to file a timely appeal, but Pishok did file a
petition for post-conviction relief with the trial court.
{¶4} On June 4, 2003, the trial court granted one ground for relief and
resentenced Pishok, which allowed him to file a direct appeal. In his first appeal,
Pishok asserted five assignments of error, including claims that he was denied the
right to a speedy trial, that he had ineffective assistance of counsel, and that his
guilty plea was not knowingly and voluntarily entered. We overruled all five
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assignments of error and affirmed. See State v. Pishok, 3rd Dist. No. 13–03–43,
2003–Ohio–7118.
{¶5} On November 6, 2003, while his appeal was pending, Pishok filed a
second petition for post-conviction relief. The trial court dismissed the petition
without a hearing on March 10, 2005. Pishok appealed from that dismissal. On
October 17, 2005, we affirmed the judgment of the trial court dismissing the
petition for post-conviction relief. See State v. Pishok, 3rd Dist. No. 13–05–11,
2005–Ohio–5467.
{¶6} On January 29, 2008, Pishok filed a motion to withdraw his guilty
plea, claiming a manifest injustice. The trial court denied the motion without a
hearing. Pishok appealed and this Court affirmed the trial court’s decision. See
State v. Pishok, 3rd Dist. No. 13–08–05, 2008–Ohio–3230.
{¶7} Pishok has also filed several other appeals to the Supreme Court of
Ohio and petitions for a writ of habeas corpus, all of which have been denied.
{¶8} On March 10, 2010, Pishok filed a motion for a resentencing hearing
pertaining to the matter of improper notification of post-release control. The trial
court denied the motion for the resentencing hearing. Pishok appealed and, on
September 7, 2010, this Court sustained the first assignment of error and remanded
the case to the trial court for a resentencing hearing so that Pishok could be
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properly notified of post-release control. State v. Pishok, 3rd Dist. No. 13–10–12,
Sept. 7, 2010.
{¶9} On November 10, 2010, the trial court held a resentencing hearing.
On November 23, 2010, the trial court filed its “Judgment Entry of Sentence,”
imposing the same sentence as in his original judgment entry of sentencing, but
properly informing Pishok as to post-release control, and giving him credit for all
of the time served to date.
{¶10} On December 3, 2010, Pishok’s counsel filed a “Motion to Correct
Sentencing Entry,” pointing out that there were four typographical errors in the
November 23, 2010 Judgment Entry. On December 13, 2010, the State filed a
“Response to Motion to Correct Sentencing Entry,” stating that it had no objection
to the motion to correct the sentencing entry, and added that there was an
additional typographical error that needed to be corrected.
{¶11} On December 20, 2010, the trial court filed a Nunc Pro Tunc to the
November 23, 2010 Judgment Entry correcting the typographical errors and
highlighting those corrections in bold-faced type. There were no other changes to
the judgment entry and no substantive changes were made other than the
correction of the clerical errors.
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{¶12} On January 18, 2011, Pishok’s counsel filed his notice of appeal
“from the judgment entry of the Seneca County Court of Common Pleas entered
on December 20, 2010.”
{¶13} On June 27, 2011, this Court dismissed Pishok’s appeal as untimely
because his notice of appeal was filed outside of the thirty day timeframe from the
November 23, 2010 Judgment Entry of Sentence. In our decision, we noted that
the trial court’s December 20, 2010 Nunc Pro Tunc entry applied retrospectively
to the November 23, 2010 judgment, which it corrected.
{¶14} Pishok’s counsel subsequently filed a motion for a delayed appeal
citing attorney error, which this Court granted. Pishok now appeals the November
23, 2010 Judgment Entry, as corrected by the December 20, 2010 Nunc Pro Tunc
entry, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE THIRD DISTRICT COURT OF APPEALS WAS
WITHOUT JURISDICTION TO CONSIDER THE MERITS
OF THE DEFENDANT-APPELLANT’S PRIOR DIRECT
APPEAL IN STATE v. PISHOK (DEC. 29, 2003), SENECA
APP. 13-03-43, 2003-OHIO-7118, BECAUSE THE TRIAL
COURT’S JUDGMENT ENTRY OF SENTENCE WAS NOT A
FINAL, APPEALABLE ORDER WHERE IT DID NOT
SATISFY OHIO CRIMINAL RULE 32(C)’S REQUIREMENT
THAT THE JUDGMENT OR CONVICTION SET FORTH
THE GUILTY PLEA, THE JURY VERDICT, OR THE
FINDING OF THE COURT UPON WHICH HIS
CONVICTIONS WERE BASED.
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Case No. 13-11-22
ASSIGNMENT OF ERROR NO. II
DEFENDANT-APPELLANT WAS DENIED DUE PROCESS
OF LAW WHEN HE WAS DENIED A FAIR AND
IMPARTIAL HEARING ON HIS MOTION TO DISMISS FOR
STATUTORY SPEEDY TRIAL VIOLATION PURSUANT TO
R.C. §2945.71(C)(2) AND (E), BY AND THROUGH
CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF
COUNSEL, WHEN TRIAL COUNSEL FAILED TO
PRODUCE AND SUBMIT INTO EVIDENCE AT THE
HEARING, READILY OBTAINABLE LEGAL AUTHORITY
THAT WAS FAVORABLY DISPOSITIVE TO HIS SPEEDY
TRIAL ISSUE.
ASSIGNMENT OF ERROR NO. III
DEFENDANT-APPELLANT’S GUILTY PLEA WAS NOT
KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY
ENTERED IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, DUE TO TRIAL COUNSEL’S
INEFFECTIVE ASSISTANCE IN MISREPRESENTING
BASIC LEGAL PRINCIPLE THAT HE COULD PLEAD
GUILTY AND STILL APPEAL HIS SPEEDY TRIAL ISSUE,
THAT IN AFFECT [SIC], EFFECTIVELY INDUCED THE
DEFENDANT-APPELLANT INTO AN UNCOUNSELED
GUILTY PLEA.
{¶15} For ease of discussion, we elect to address Pishok’s assignments of
error together.
First, Second and Third Assignments of Error
{¶16} In his first assignment of error, Pishok raises a threshold issue which
will determine our approach in addressing his second and third assignments of
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Case No. 13-11-22
error. Specifically, Pishok argues that the trial court’s June 4, 2003 Judgment
Entry imposing his conviction and sentence failed to comply with Crim.R. 32(C)
because the trial court used the words “was convicted” rather than specifying that
Pishok pled guilty to the charges. In support of his argument, Pishok cites State v.
Baker, 119 Ohio St. 3d 197,
2008-Ohio-3330,
893 N.E.2d 163, to contend that the
trial court’s June 4, 2003 Judgment Entry was not a final appealable order because
it did not specify how he was convicted. Pishok now maintains that this Court was
without jurisdiction to hear his original appeal from that judgment in 2003.
{¶17} Pishok contends that this current appeal should be treated as the first
appeal of the judgment of his conviction and sentence because the trial court’s
November 23, 2010 Judgment Entry was the first order imposing his sentence
which complied with Crim.R 32(C). In essence, Pishok is now attempting to
breathe new life into an appeal that has already been decided by this Court on its
merits nearly eight years ago. However, Pishok misconstrues the magnitude of
Baker’s effect on the original June 4, 2003 Judgment Entry imposing his
conviction and sentence.
{¶18} Recently, in State v. Lester, --Ohio St.3d--, 2011-Ohio-5204, the
Supreme Court of Ohio explained that the overriding purpose of Crim.R. 32(C) is
“to ensure that a defendant is on notice concerning when a final judgment has been
entered and the time for filing an appeal has begun to run.”
Id. at ¶ 10 citing State
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v. Tripodo (1977), 50 Ohio St.2d 124, 127,
363 N.E.2d 719; App.R. 4(A). The
Supreme Court then modified its holding in Baker stating “that a judgment of
conviction is a final order subject to appeal under R.C. 2505.02 when the
judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the
judge’s signature, and (4) the time stamp indicating the entry upon the journal by
the clerk. Id. at ¶ 14. (Emphasis added). The Supreme Court found in Lester that
a judgment of conviction and sentence which simply states that the defendant had
been convicted of an offense without specifying how the defendant was convicted
satisfies the first requirement of Crim.R. 32(C) by including the “fact of
conviction.”
{¶19} In applying the foregoing principle to the instant case, the June 4,
2003 Judgment Entry of conviction and sentence was a final appealable order
under Crim.R. 32(C) because it contained all the necessary requirements discussed
in Lester, including the fact that Pishok was convicted of the offenses.
Accordingly, the Court was vested with jurisdiction to hear Pishok’s appeal from
that judgment and to decide the case on its merits. Therefore, Pishok’s first
assignment of error is overruled.
{¶20} Pishok’s second and third assignments of error are predicated on his
misconception that the June 4, 2003 Judgment Entry of conviction and sentence
was not a final appealable order and that this is his “first appeal” of that decision.
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Case No. 13-11-22
However, for the reasons previously discussed and because Pishok raised these
same issues in his first appeal of his judgment of conviction and sentence in 2003,
we conclude that Pishok’s claims are now barred by res judicata. Pishok’s second
and third assignments of error are overruled.
{¶21} Based on the foregoing, the judgment of the Seneca County Court of
Common Pleas is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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