[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, O P I N I O N 

 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 

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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 
Case No. 13-11-22 

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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 
Case No. 13-11-22 

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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. 
Case No. 13-11-22 

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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. 
Case No. 13-11-22 

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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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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. 
Case No. 13-11-22 

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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