STATE OF OHIO, Plaintiff-Appellee -vs- MONDELL ALEXANDER, Defendant-Appellant
Case No. 2014CA00014
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
May 27, 2014
2014-Ohio-2294
Hon. William B. Hoffman, P.J.; Hon. W. Scott Gwin, J.; Hon. Sheila G. Farmer, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2010-CR-1653; JUDGMENT: Affirmed
For Plaintiff-Appellee
JOHN D. FERRERO PROSECUTING ATTORNEY BY KATHLEEN O. TATARSKY 110 Central Plaza South Canton, OH 44702
For Defendant-Appellant
MONDELL ALEXANDER PRO SE No. 594-547 M.C.I. Box 57 Marion, OH 43301
{¶1} Defendant-Appellant Mondell Alexander [“Alexander“] appeals the January 7, 2014 judgment entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.
Facts and Procedural History
{¶2} Alexander was indicted by the Stark County Grand Jury on two counts of aggravated robbery, first-degree felonies in violation of
{¶3} On January 5, 2011, Alexander appeared before the trial court and changed his not guilty pleas to guilty. Alexander signed a
{¶4} The change of plea and sentence was journalized on January 19, 2011. The sentencing entry states that Alexander was subject to a mandatory five-year term of post-release control.
{¶5} Alexander did not file a direct appeal of his conviction or sentence.
{¶6} On May 1, 2012, Alexander filed a Motion for Sentencing and Leave to Withdraw Guilty Plea(s). In his motion, Alexander argued his sentence was void for
{¶7} On November 19, 2013, Alexander filed a motion for a final appealable order arguing that his pleas of guilty and sentences were not final appealable orders because the trial court did not enter a finding of guilt. The trial court overruled Alexander‘s motion by Judgment Entry filed January 7, 2014.
Assignments of Error
{¶8} Alexander raises two assignments of error,
{¶9} “I. WHETHER THE FAILURE TO RENDER A FINDING OF GUILT ON THE RECORD AND IN OPEN COURT IN A GUILTY PLEA CASE, CONSTITUTES A FINAL APPEALABLE ORDER PURSUANT TO
{¶10} “II. WHETHER PENALTY PHASE ERROR CAN BE CURED BY SUBSEQUENT PROCEEDINGS, I.E., INCORPORATION OF THE OMITTED FINDING OF GUILT IN THE COURT‘S JUDGMENT ENTRY.”
I. & II.
{¶11} Alexander‘s first and second assignments of error raise common and interrelated issues; therefore, we will address the arguments together.
{¶13} Under the doctrine of “invited error,” it is well settled that “a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make.” State ex rel. Smith v. O‘Connor, 71 Ohio St.3d 660, 663, 1995-Ohio-40, 646 N.E.2d 1115(1995) citing State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 359, 1994-Ohio-302, 626 N.E.2d 950(1994). See, also, Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145(1943) paragraph one of the syllabus. As the Ohio Supreme Court has stated,
[t]he law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible.
Lester at 92-93, quoting State v. Kollar, 93 Ohio St. 89, 91, 112 N.E. 196(1915).
{¶14} In the case at bar, Alexander could have requested the trial court make a finding of guilty on the record when asked if he wished to address the court prior to the
{¶15} We further find that Alexander has waived the error by failing to raise this contention in his previous appeal. 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), syllabus, approving and following State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus. It is well settled that, “pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post conviction relief if he or she could have raised the issue on direct appeal.” State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997). Accordingly, “[t]o survive preclusion by res judicata, a petitioner must produce new evidence that would render the judgment void or voidable and must also show that he could not have appealed the claim based upon information contained in the original record.” State v. Nemchik, 9th Dist. Lorain No. 98CA007279, 2000 WL 254908(Mar. 8, 2000); see, also, State v. Ferko, 9th Dist. Summit No. 20608, 2001 WL 1162835(Oct. 3, 2001).
{¶16} In the case at bar, the facts and information upon which Alexander bases his arguments in the present appeal are contained in the trial court record. Accordingly, Alexander had the opportunity to raise this issue on direct appeal, but he failed to do so. The doctrine of res judicata bars Alexander from raising this issue anew via a motion for
{¶17} In State v. Lester, the Ohio Supreme Court observed,
R.C. 2505.02 sets forth the conditions under which an order is final and may be reviewed, affirmed, or modified, with or without retrial.Crim.R. 32(C) specifies the substantive requirements that are to be included within a judgment of conviction that make it final for purposes of appeal. We find that appellant‘s original judgment entry of conviction meets theCrim.R. 32(C) requirements because it contained the fact of the conviction, the sentence, the judge‘s signature, and the time stamp indicating the entry upon the journal by the clerk. Therefore, the original judgment entry of conviction was a final order subject to appeal underR.C. 2505.02 . Moreover, the absence of the language required byCrim.R. 32(C) as a matter of form indicating how appellant‘s conviction was effected has not deprived appellant of any opportunity to appeal his conviction or sentence, as he has appealed numerous times, and in none of those previous direct appeals or collateral procedures did appellant raise any arguments regarding the lack of finality of the judgment of conviction. Lester, 2007-Ohio-4239, 2007 WL 2350759; 2008-Ohio-1148, 2008 WL 696901; 2007-Ohio-5627, 2007 WL 3054319; and (May 11, 2009), 3d Dist. No. 2-08-24. 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶17.
The same is true in the case at bar, Alexander has not been deprived of any opportunity to appeal his conviction or sentence, as he has appealed, and in his previous appeal Alexander did
{¶18} In the case now before us, the original sentencing order complied with the substantive requirements of
{¶19} The record reflects Alexander was present at the sentencing hearing and signed the
{¶20} The arguments presented by Alexander in the present case could have been presented in a direct appeal from the trial court‘s sentencing entry or in his previous appeal to this Court, but they were not. As a result, res judicata bars Alexander from raising them in this appeal.
{¶21} Alexander‘s first and second assignments of error are overruled.
By Gwin, J.,
Hoffman, P.J., and
Farmer, J., concur