State v. AlexanderState v. Alexander
STATE OF OHIO, PLAINTIFF-APPELLEE vs. SHERRON ALEXANDER, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 24, 2011
Sherron Alexander, pro se
Inmate No. 474-351
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, OH 44030
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶ 1} Appellant Sherron Alexander appeals his conviction and sentence by the Cuyahoga County Court of Common Pleas. For the reasons set forth herein, we affirm.
{¶ 2} On November 14, 2003, a Cuyahoga County grand jury indicted Alexander on three counts of drug trafficking, one of which carried a major drug offender specification (“MDO“); two counts of drug possession, one of which carried a MDO specification; and one count of possession of criminal tools. At a bench trial, Alexander was found guilty on all
{¶ 3} Alexander appealed, and this court affirmed his convictions. State v. Alexander, Cuyahoga App. No. 85688, 2005-Ohio-5200. One of the issues he raised was whether there was sufficient evidence that the amount of crack cocaine found in his possession exceeded 100 grams. This court found that there was, thereby affirming the trial court‘s determination that Alexander was a major drug offender pursuant to
{¶ 4} In 2009, Alexander filed a motion to void judgment, arguing that his sentence was unlawful. Specifically, he argued that the court erred by imposing consecutive sentences, by sentencing him to ten years instead of five for trafficking and possession, by
{¶ 5} Alexander also filed a motion for correction of sentencing error, arguing that the MDO specifications were unconstitutional; that his counsel was ineffective for failing to file a motion to suppress and not challenging the laboratory report; and that trafficking and possession are allied offenses. The state moved for summary judgment on all claims raised by Alexander in his two motions, arguing that his motions amounted to petitions for postconviction relief, and should be barred as untimely.
{¶ 6} On October 19, 2010, the trial court granted the state‘s motion, and Alexander appealed, citing three assignments of error for our review. We note, however, that Alexander raises an additional argument in his reply brief, which is that the trial court erred by converting his motions to petitions for postconviction relief. We address this issue first as we find that its resolution affects our analysis of the remaining three assigned errors.
{¶ 7} Alexander contends that his motions to void judgment and for correction of sentencing error do not meet the criteria of postconviction relief petitions. We disagree.
{¶ 8}
{¶ 9}
{¶ 10} In State v. Briscoe, Cuyahoga App. No. 83471, 2004-Ohio-4096, ¶ 10, this court found that motions for relief from judgment and for new trial met the definition of a motion for postconviction relief where the motions “1) were filed subsequent to appellant‘s direct appeal; 2) claimed denials of constitutional rights; 3) sought to render the judgment void; and 4) asked for vacation of the judgment.” (Internal citations omitted.)
{¶ 11} Alexander seeks similar relief; he contends that the trial court committed plain error in converting his motions. He offers no basis for why his motions are not actually petitions for postconviction relief, except to argue the substantive merits of his motions.
{¶ 12} “A motion that is not filed pursuant to a specific rule of criminal procedure ‘must be categorized by a court in order for the court to know the criteria by which the motion should be judged.‘” State v. Elkins, Franklin App. No. 10AP-6, 2010-Ohio-4605, ¶ 7, citing State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522, ¶ 10. “Where a criminal defendant, subsequent to a direct appeal, files a motion seeking vacation or correction
{¶ 13} We find that the trial court properly construed Alexander‘s motions as petitions for postconviction relief. Therefore, we must next consider whether Alexander‘s petitions were timely filed. To do so, we must look to the substance of Alexander‘s three assignments of error.2
{¶ 14} ”
{¶ 15} In this appeal, Alexander challenges his sentence. He argues that the trial court failed to merge his trafficking and possession convictions as allied offenses; that he was improperly sentenced to ten years for MDO specifications; and that the trial court violated
{¶ 16} Even if Alexander‘s motions were not untimely under
{¶ 17} Alexander had an opportunity to raise the same issues he raises here in his direct appeal in 2004. He did not. Instead, he waited four years to challenge his sentence, and the doctrine of res judicata prohibits our review.
{¶ 18} While his substantive arguments may have merit, Alexander did not timely file his petitions, and he fails here to establish that his petitions fall under an exception to
{¶ 19} Consequently, our resolution of this issue renders Alexander‘s remaining assignments of error moot.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and JAMES J. SWEENEY, J., CONCUR