[Cite as State v. Barnett,
2016-Ohio-574.]
COURT OF APPEALS
PERRY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JEFFREY L. BARNETT : Case No. 15-CA-00011
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Perry County Court
of Common Pleas, Case No. 08-CR-
0070
JUDGMENT: Affirmed
DATE OF JUDGMENT: February 16, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH A. FLAUTT DEBORAH N. FRIES
Prosecuting Attorney Gottlieb, Johnston, Beam &
111 North High Street Dal Ponte, P.L.L.
P.O. Box 569 320 Main Street
New Lexington, Ohio 43764 P.O. Box 190
Zanesville, Ohio 43702
Perry County, Case No. 15-CA-00011 2
Baldwin, J.
{¶1} Appellant appeals a judgment of the Perry County Common Pleas Court
overruling his motion for new trial. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On September 19, 2008, the Perry County Grand Jury indicted appellant on
fifteen counts of rape in violation of R.C. 2907.02(A)(2), felonies of the first degree, fifteen
counts of sexual battery in violation of R.C. 2907.03(A)(5), felonies of the third degree,
and fifteen counts of unlawful sexual conduct with a minor in violation of R.C. 2907.04(A)
and (B)(3), felonies of the third degree. The indictment alleged that the offenses occurred
on or about June 2004 to May 2005. At his arraignment on September 22, 2008, appellant
entered a plea of not guilty to the charges.
{¶3} On December 3, 2008, appellant withdrew his plea of not guilty and entered
a plea of guilty to eleven counts of sexual battery. The remaining counts were dismissed.
Appellant was adjudicated a Tier II sex offender and sentenced to a definite prison
sentence of one year on each count. The court ordered that the sentences be served
consecutively, for an aggregate prison sentence of eleven years.
{¶4} Appellant filed a Motion for Resentencing on February 17, 2012, arguing
that there was no final appealable order. After appellee filed a memorandum stating that
the January 16, 2009 Judgment Entry was not a final appealable order, the trial court
issued a Nunc Pro Tunc Judgment Entry on March 30, 2012. Appellant filed a Notice of
Appeal from the March 30, 2012 Judgment Entry on April 27, 2012. This Court dismissed
the appeal for want of prosecution when appellant failed to file a brief.
Perry County, Case No. 15-CA-00011 3
{¶5} On November 1, 2012, appellant filed a Motion to Reopen Appeal pursuant
to App.R. 26(B). This Court granted the motion. Appellant argued that the court erred in
imposing consecutive sentences, and that the court failed to comply with R.C. 2929.11,
2929.12(D) and Crim.R. 32. We overruled these assignments of error, finding that
appellate review was barred by R.C. 2953.08(D) because the sentence was authorized
by law as part of a negotiated plea agreement. State v. Barnett, 5th Dist. Perry No. 12-
CA-00010, 2013-Ohio-4936. We sustained appellant’s assignment of error as to his
classification for registration as a sex offender, and the trial court re-classified appellant
as a sexually oriented offender upon remand.
{¶6} Appellant subsequently filed several motions for resentencing. On March
19, 2015, appellant filed a motion characterized as a motion for new trial. The trial court
denied the motion on April 14, 2015. Appellant assigns three errors:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE
DEFENDANT TO CONSECUTIVE SENTENCES FOR AN AGGRAGATE [SIC] OF
ELEVEN YEARS.
{¶8} “II. THE TRIAL COURT ERRED WHEN IT RESENTENCED APPELLANT
AND DID NOT LIST THE REASON FOR CONSECUTIVE SENTENCES AFTER AM.
SUB. H.B. 86 REINSTATED STATUTORY LANGUAGE MADE INVALID UNDER
FOSTER.
{¶9} “III. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL AND HIS PLEA WAS NOT MADE KNOWINGLY, VOLUNTARILY, AND
INTELLIGENTLY.”
Perry County, Case No. 15-CA-00011 4
I., II.
{¶10} In his first two assignments of error, appellant argues that the court erred in
sentencing him to consecutive sentences. Appellant argues that these assignments of
error should not be barred by res judicata because he was not represented by counsel
on his prior appeal.
{¶11} Although appellant’s initial appeal was dismissed for want of prosecution,
we reopened the appeal pursuant to App. R. 26(B) and considered the merits of
appellant’s claims concerning sentencing, finding the claims barred from appellate review
by R.C. 2953.08(D). Appellant’s arguments concerning consecutive sentencing are
barred by res judicata by our prior opinion on the same issues.
{¶12} The first and second assignments of error are overruled.
III.
{¶13} In his third assignment of error, appellant argues that his counsel was
ineffective in the plea process. Appellant concedes that the record does not demonstrate
his claimed errors in the plea process, and the third assignment of error is therefore
overruled.
Perry County, Case No. 15-CA-00011 5
{¶14} The judgment of the Perry County Common Pleas Court is affirmed. Costs
are assessed to appellant.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
