State v. Bunger , 2012 Ohio 946 ( 2012 )

[Cite as State v. Bunger, 2012-Ohio-946.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. CT2011-0049
:
:
TERRY R. BUNGER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Muskingum
County Court of Common Pleas Case
No. CT2005-0060
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 7, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT SMITH TERRY R. BUNGER
Assistant Prosecuting Attorney P.O. Box 4501
27 North Fifth Street Lima, Ohio 45802
Zanesville, Ohio 43701
[Cite as State v. Bunger, 2012-Ohio-946.]
Edwards, J.
{¶1} Appellant, Terry R. Bunger, appeals a judgment of the Muskingum County
Common Pleas Court dismissing his complaint for specific performance. Appellee is the
State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On March 3, 2005, appellant was indicted by the Muskingum County
Grand Jury with one count of rape in violation of R.C. 2907.02(A)(1)(b). The indictment
alleged that the victim was three years old. On January 3, 2006, appellant agreed to
enter a plea of guilty to an amended charge of attempted rape in violation of R.C.
2923.02(A) and R.C. 2907.02(A)(1)(b). The parties agreed to recommend a sentence
of eight years incarceration. On February 10, 2006, the court sentenced appellant to a
term of incarceration of eight years and classified him as a sexual predator. This Court
affirmed on appeal.
{¶3} Appellant was resentenced on May 7, 2010, to include a term of
postrelease control. Appellant filed an appeal from this judgment and this Court
affirmed.
{¶4} On August 10, 2011, appellant filed a complaint for specific performance.
In this complaint, he asked that the language “victim less than ten (10) years of age” be
stricken from his sentencing entry and various other documents filed in the case,
because he entered a plea of guilty to R.C. 2907.02(A)(1)(b), which specifies that the
victim is under thirteen years of age. The trial court dismissed the complaint for specific
performance.
Muskingum County App. Case No. CT2011-0049 3
{¶5} Appellant filed a notice of appeal to this Court. He has failed to identify an
assignment of error as required by App. R. 16(A)(3). However, it appears from his brief
that appellant argues that the court erred in failing to change the language in his
sentencing entry from identifying the victim as less than ten years of age to the statutory
language of less than thirteen years of age.
{¶6} Appellant filed a direct appeal from both his original sentencing entry and
his resentencing entry, yet he failed to raise a claim that the language of the entry did
not properly reflect the language of the statute to which he entered a plea. Under the
doctrine of res judicata, a final judgment of conviction bars a convicted defendant who
was represented by counsel from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial which resulted in that
judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77 Ohio
St.3d 93, 671 N.E.2d 233, 1996-Ohio-337, syllabus. Appellant was represented by
counsel in his direct appeal from his sentencing in 2006 and on direct appeal from his
resentencing in 2010, yet failed to raise this claimed error. His claim is now barred by
res judicata.
{¶7} In addition, the record reflects that although the judgment entry of
resentencing refers to the plea as one to a charge of attempted rape where the victim
was under the age of ten rather than thirteen as set forth in the statute, the entry
properly reflects the correct Revised Code section to which appellant entered his 2006
plea, and the sentence of eight years was the sentence agreed to by the parties in the
plea agreement. The typographical error in the entry does not in any way affect
Muskingum County App. Case No. CT2011-0049 4
appellant’s conviction or sentence, and the record reflects that the victim is in fact three
years of age.
{¶8} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Farmer J. concur
______________________________
______________________________
______________________________
JUDGES
[Cite as State v. Bunger, 2012-Ohio-946.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
TERRY R. BUNGER :
:
Defendant-Appellant : CASE NO. CT2011-0049
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Muskingum County Court of Common Pleas is affirmed. Costs
assessed to appellant.
_________________________________
_________________________________
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JUDGES