[Cite as State v. Walker, 2017-Ohio-8566.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsGARY D. WALKER 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P.J. 

Hon. William B. Hoffman, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. 17-CA-32, 17-CA-53 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Common 

Pleas Court, Case No. 2009CR0052D 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: November 13, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

GARY BISHOP GARY D. WALKER, PRO SE 

Prosecuting Attorney, Inmate No. A554324 

Richland County, Ohio Richland Correctional Institution 

 1001 Olivesburg Road 

By: JOSEPH C. SNYDER Mansfield, Ohio 44901 

Assistant Prosecuting Attorney 

38 South Park Street, Second Floor 

Mansfield, Ohio 44902 
Richland County, Case No. 17-CA-32, 17-CA-53 2

Hoffman, J. 

{¶1} Defendant-appellant Gary D. Walker appeals the judgment entered by the 

Richland County Common Pleas Court overruling his request for waiver of court costs 

and overruling his request for waiver of restitution in the amount of $20,000, but granting 

the motion in the amount of $12,538. Appellee is the state of Ohio. 

STATEMENT OF THE CASE1

{¶2} This case arose from a scheme in which appellant directed others to cash 

forged federal stimulus checks at Wal–Marts throughout Ohio. On June 2, 2009, after the 

commencement of a jury trial in the Richland County Common Pleas Court, Appellant 

pled guilty to forty-seven felony counts, including engaging in a pattern of corrupt activity, 

forgery, and theft. He was sentenced to an aggregate term of imprisonment of twelve 

years, and ordered to pay restitution in the amount of $32,538. 

{¶3} On March 15, 2016, the U.S. District Court for the Southern District of Ohio, 

Western Division, granted Appellant a conditional writ of habeas corpus, ordering 

Appellant to be released unless he was granted a new direct appeal of the Richland 

County conviction, with appointed counsel, within 180 days. Walker v. Warden, Lake Erie 

Correctional Institution, S.D.Ohio No. 1:13cv159 (Mar. 15, 2016). We reopened 

Appellant's direct appeal on April 12, 2016. 

{¶4} Appellant assigned eight errors on the reopened appeal. We vacated the 

trial court orders to pay court costs and restitution, and remanded the case to the trial 

court for the limited purposes of 1) allowing Appellant to move the court to waive payment 

 

1A rendition of the facts underlying Appellant’s criminal convictions is unnecessary for our 

disposition of this appeal. 
Richland County, Case No. 17-CA-32, 17-CA-53 3

of court costs, and 2) permitting the trial court to consider Appellant's present and future 

ability to pay $32,538 in restitution. State v. Walker, 5th Dist. Richland No. 09CA88, 2016-

Ohio-8615, ¶ 62. In all other respects we affirmed Appellant’s convictions and sentences. 

{¶5} The trial court held a hearing on March 13, 2017, on the issue of restitution 

and court costs. Following the hearing, the trial court amended restitution from $32,538 

to $20,000, and left the order to pay court costs in place. Appellant filed a writ of 

mandamus with this Court seeking a final appealable order in compliance with State v. 

Baker, 119 Ohio St.3d 197, 893 N.E.2d 163, 2008-Ohio-3330. Appellant also filed a direct 

appeal from the judgment entry in Appellate Case Number 17CA32. 

{¶6} The trial court issued a nunc pro tunc sentencing entry on May 31, 2017, 

incorporating its restitution order of March 29, 2017, with its 2009 sentencing entry. The 

writ of mandamus was thereafter dismissed, and Appellant filed a notice of appeal from 

the May 31, 2017 entry in Appellate Case Number 17CA53. We consolidated Case 

Numbers 17CA32 with 17CA53, with Case Number 17CA53 controlling. 

{¶7} It is from the May 31, 2017 entry Appellant prosecutes this appeal, 

assigning the following as error: 

 “I. THE TRIAL COURT ERRED BY ISSUING A NON-FINAL 

APPEALABLE ORDER [THE MARCH 29, 2017 ORDER] WHICH 

DEPRIVED THIS APPELLATE COURT SUBJECT-MATTER 

JURISDICTION OVER THE APPEAL IN STATE V. WALKER, RICHLAND 

APP. NO. 2017-CA-0032. 
Richland County, Case No. 17-CA-32, 17-CA-53 4

 “II. THE TRIAL COURT VIOLATED THE CONFRONTATION 

CLAUSE TO THE FIFTH AMENDMENT OF THE UNITED STATES 

CONSTITUTION, THE DUE PROCESS CLAUSE TO THE FOURTEENTH 

AMENDMENT OF THE UNITED STATES CONSTITUTION AND CRIM. R. 

43(A) BY IMPOSING RESTITUTION AND COURT COST IN THE MAY 31, 

2017 NUNC PRO TUNC SENTENCING ENTRY WITHOUT APPELLANT 

BEING PRESENT. 

 “III. THE TRIAL COURT COMPLETELY DEPRIVED APPELLANT 

EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION BY IMPOSING 

RESTITUTION AND COURT COST IN THE MAY 31, 2017 NUNC PRO 

TUNC SENTENCING ENTRY WITHOUT COUNSEL BEING PRESENT. 

 “IV. THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY 

CLAUSE TO THE FIFTH AMENDMENT OF THE UNITED STATES 

CONSTITUTION BY INCREASING APPELLANT’S SENTENCES ON 

COUNTS 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 45, 46, 

47 AND 48, WITH RESTITUTION AFTER APPELLANT COMPLETED HIS 

SENTENCES FOR THOSE COUNTS. 

 “V. THE TRIAL COURT ERRED IN FAILING TO HOLD AN 

EVIDENTIARY HEARING IN COMPLIANCE WITH R.C. 2929.28(A)(1) 

WHEN APPELLANT DISPUTED THE AMOUNT OF RESTITUTION. 

 “VI. THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF 

LAW UNDER THE FOURTEENTH AMENDMENT TO THE UNITED 
Richland County, Case No. 17-CA-32, 17-CA-53 5

STATES CONSTITUTION BY FAILING TO AFFORD APPELLANT 

NOTICE AND THE OPPORTUNITY TO BE HEARD REGARDING 

EVIDENCE THE COURT USED TO MODIFY AND CALCULATE THE 

RESTITUTION SENTENCE IN THE MAY 31, 2017 NUNC PRO TUNC 

SENTENCING ENTRY. 

 “VII. THE TRIAL COURT ERRED IN SENTENCING APPELLANT 

TO CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE 

JUDICIAL FINDINGS MANDATED BY R.C. 2929.14(C)(4). 

 “VIII. THE TRIAL COURT IMPOSED SENTENCES CONTRARY TO 

LAW UNDER R.C. 2929.41(A) BY ORDERING THE SENTENCES IN THE 

INSTANT CASE TO RUN CONSECUTIVE TO THE SENTENCES 

IMPOSED IN APPELLANT’S UNRELATED CASES. 

 “IX. THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY 

CLAUSE TO THE FIFTH AMENDMENT TO THE UNITED STATES 

CONSTITUTION BY FAILING TO CREDIT APPELLANT FOR TIME 

SERVED IN PRISON AND BY FAILING TO INCLUDE THOSE DAYS IN 

THE MAY 31, 2017 NUNC PRO TUNC SENTENCING ENTRY. 

 “X. THE TRIAL COURT ERRED BY FAILING TO HOLD A 

HEARING TO DETERMINE THE AMOUNT OF COURT COST TO BE 

IMPOSED IN COMPLIANCE WITH R.C. 2923.32(B)(2)(c). 

 “XI. THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY 

WITH R.C. 2947.23(a)(1)(i).” 
Richland County, Case No. 17-CA-32, 17-CA-53 6

{¶8} We note, this matter comes before this Court pursuant to the accelerated 

calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule 

12(A) for the statement of the reason for the court's decision as to each error to be in brief 

and conclusionary form. 

I. 

{¶9} In his first assignment of error, Appellant argues the court erred in issuing 

an entry amending the amount of restitution which did not constitute a final, appealable 

order pursuant to Crim. R. 32(C). As discussed in the Statement of the Case, the trial 

court issued a nunc pro tunc sentencing order, including the revised amount of restitution. 

The appeals from both entries have been consolidated, and this assignment of error is 

moot. 

{¶10} The first assignment of error is overruled. 

II., III. 

{¶11} In his second and third assignments of error, Appellant argues the court 

erred in issuing a nunc pro tunc sentencing entry outside his presence, and without 

affording him the right to counsel. 

{¶12} The trial court held a hearing on restitution and court costs on March 13, 

2017, at which Appellant was present and represented by counsel. The court issued an 

order modifying restitution in accordance with the evidence presented at this hearing, 

which the court later incorporated into a complete sentencing entry via the nunc pro tunc 

entry filed May 31, 2017. 

{¶13} The remedy for failure to comply with Crim.R. 32(C) is a revised sentencing 

entry rather than a new hearing. State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 
Richland County, Case No. 17-CA-32, 17-CA-53 7

2011-Ohio-235, 943 N.E.2d 535, ¶ 18 (2011). Appellant was not entitled to a second 

hearing at which he had the right to be present and the right to counsel before the trial 

court issued a nunc pro tunc sentencing entry. 

{¶14} The second and third assignments of error are overruled. 

IV. 

{¶15} In his fourth assignment of error, Appellant argues the court violated the 

Double Jeopardy clause of the Fifth Amendment by adding restitution to his sentence for 

counts on which he had completed his prison sentence. 

{¶16} The judgment did not increase Appellant’s sentence for counts on which 

Appellant had finished serving his prison sentence by adding restitution to his sentence. 

Restitution was always a part of Appellant’s sentence. Rather, Appellant challenged in 

Case No. 09CA88 the court’s failure to consider his present and future ability to pay 

restitution, and we remanded to the court for further proceedings on the issue of restitution 

at Appellant’s request. The trial court did not violate Double Jeopardy by imposing a 

lower amount of restitution than the amount originally ordered. 

{¶17} The fourth assignment of error is overruled. 

V. 

{¶18} In his fifth assignment of error, Appellant argues the court erred in failing to 

hold an evidentiary hearing on the amount of restitution based on evidence of Wal-Mart’s 

actual economic loss. He argues an evidentiary hearing was required in accordance with 

R.C. 2929.18(A)(1), which provides in pertinent part: 
Richland County, Case No. 17-CA-32, 17-CA-53 8

 If the court decides to impose restitution, the court shall hold an 

evidentiary hearing on restitution if the offender, victim, or survivor disputes 

the amount of restitution. If the court holds an evidentiary hearing, at the 

hearing the victim or survivor has the burden to prove by a preponderance 

of the evidence the amount of restitution sought from the offender. 

{¶19} The remand in the instant case was limited strictly to Appellant’s ability to 

pay restitution, and not for the purpose of allowing Appellant to dispute the amount of 

restitution sought by the victim: 

 In the instant case, we are unable to determine from the record that 

the trial court made any inquiry into appellant’s ability to pay restitution 

because the record is devoid even of any reference to a pre-sentence 

investigation. We are thus constrained to vacate the restitution order and 

remand this matter to the trial court for consideration of appellant’s present 

and future ability to pay. Moody, supra, 2010–Ohio–3272, at ¶ 55. A review 

of the record does not demonstrate the trial court complied with R.C. 

2929.19(B)(6). State v. Woods, 5th Dist. Licking No. 12–CA–19, 2013–

Ohio–1136, ¶ 51. See also, State v. Caudill, 5th Dist. Ashland No. 03–COA–

031, 2004–Ohio–2803. 

 Appellant’s eighth assignment of error is sustained to the extent that 

the orders to pay court costs and restitution are vacated. The matter is 

remanded to the trial court for the limited purposes of 1) allowing appellant 
Richland County, Case No. 17-CA-32, 17-CA-53 9

to move the court to waive payment of court costs, and 2) permitting the trial 

court to consider appellant’s present and future ability to pay $32,538 in 

restitution. Joseph, supra, 2010–Ohio–954 at ¶ 23; Sizemore, supra, 2016–

Ohio–1529 at 36. 

{¶20} State v. Walker, 5th Dist. Richland No. 09CA88, 2016-Ohio-8615, ¶ 61-62. 

{¶21} The fifth assignment of error is overruled. 

VI. 

{¶22} Appellant argues the court erred in failing to give him notice and an 

opportunity to be heard on the evidence the court used to modify restitution in the May 

31, 2017, nunc pro tunc judgment of sentencing. 

{¶23} In the March 29, 2017 order on Appellant’s request to waive court costs and 

restitution, the trial court made findings based on the March 13, 2017 evidentiary hearing 

regarding the amount of restitution. The trial court found Appellant to be above average 

in intellectual and tactical ability based on the scheme to forge and cash federal stimulus 

checks at Walmart stores throughout Ohio. The court noted almost none of the fruits of 

his thefts were recovered, and Appellant was able to hire counsel to represent him on his 

earlier appeal. The trial court found Appellant’s testimony that an unnamed friend of his 

talked counsel into doing the appeal to not be credible, and believed counsel did not work 

for free. The court further noted Appellant received his GED and attended college while 

in prison, is certified in graphic arts and design, was an entrepreneur prior to his prison 

sentence, and at least one Cleveland attorney had shown interest in employing him after 

his release from prison. The court thus concluded Appellant had a future ability to pay 
Richland County, Case No. 17-CA-32, 17-CA-53 10

when released from prison, but determined the restitution should be capped at 

$20,000.00. 

{¶24} The amount of restitution in the May 31, 2017 judgment was $20,000, in 

accordance with the more detailed entry of March 29, 2017, for which Appellant was 

afforded notice and an opportunity to be heard. 

{¶25} The sixth assignment of error is overruled. 

VII., VIII. 

{¶26} In his seventh assignment of error, Appellant argues the court erred in 

imposing consecutive sentences without making the judicial findings mandated by R.C. 

2929.14(C)(4). In his eighth assignment of error, Appellant argues the court erred in 

ordering the sentences in the instant case to run consecutive to his sentences imposed 

in his unrelated cases. 

{¶27} The instant case was not remanded for resentencing. The remand was 

limited to Appellant’s present and future ability to pay restitution, and for consideration of 

his request to waive costs. 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, other than a direct appeal from the judgment, any defense or 

lack of due process that was raised or could have been raised at the trial which resulted 

in the judgment of conviction, or on appeal from that judgment. State v. Szefcyk, 77 Ohio 

St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus. We find Appellant’s claims 

regarding consecutive sentencing to be barred by res judicata. 

{¶28} The seventh and eighth assignments of error are overruled. 
Richland County, Case No. 17-CA-32, 17-CA-53 11

IX. 

{¶29} In his ninth assignment of error, Appellant argues the court failed to give 

him credit for time served in the May 31, 2017 nunc pro tunc sentencing entry. He argues 

the entry should have reflected the time served between the date of his original 

sentencing and the date of resentence. 

{¶30} Appellant was not resentenced upon remand; rather, the court considered 

solely the issues concerning restitution and costs which we directed the court to consider. 

The trial court did nothing to modify the calculation of days Appellant was sentenced to 

serve as part of his prison sentence, and his release date was in no way affected as a 

result of the proceedings on remand or as a result of the May 31, 2017 entry. Therefore, 

the entry need not reflect the portion of his sentence previously served. 

{¶31} The ninth assignment of error is overruled. 

X., XI. 

{¶32} In his tenth assignment of error, Appellant argues pursuant to R.C. 

2923.32(B)(2)(c) the trial court was required to hold a hearing to determine the amount of 

court costs. In his eleventh assignment of error, he argues the court erred in failing to 

inform him, as required by R.C. 2947.23(A)(1)(i) that community service could be imposed 

if he failed to pay court costs. 

{¶33} The remand in the instant case was to allow Appellant to request a waiver 

of costs. The trial court was not required to hold a hearing on the amount of costs, nor 

was the court required to inform him at this juncture of the consequences of his failure to 

pay costs. 

{¶34} The tenth and eleventh assignments of error are overruled. 
Richland County, Case No. 17-CA-32, 17-CA-53 12

{¶35} The judgment of the Richland County Common Pleas Court is affirmed. 

By: Hoffman, J. 

Delaney, P.J. and 

Wise, Earle, J. concur