State v. BarberState v. Barber
- Reporters:
- ,
- Before:
- Welbaum, Donovan, Hall
WELBAUM, J.
{¶ 2} In March 2001, Barber was convicted of one count of robbery in Case No. 2000 CR 497 and sentenced to five years in prison, to be served concurrently with a sentence he received in Case No. 2000 CR 1272. In Case No. 2000 CR 1272, Barber was convicted of aggravated robbery, felonious assault, aggravated burglary, kidnapping, disrupting public services, and three counts of attempted aggravated murder. As a result of his conviction, the trial court sentenced Barber to an aggregate term of 41.5 years in prison.
{¶ 3} Barber did not file a direct appeal from the robbery conviction in Case No. 2000 CR 497; however, he did file a direct appeal in Case No. 2000 CR 1272. In that appeal, Barber claimed the trial court improperly denied him the opportunity to present a certain statement at trial that was made by the victim. He also argued that the prosecutor unfairly commented on his failure to testify in his own defense. In conducting a review under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we found no claim with arguable merit and affirmed Barber’s conviction and sentence in State v. Barber, 2d Dist. Montgomery No. 18784, 2002-Ohio-7100.
{¶ 4} On October 15, 2002, Barber filed a petition for post-conviction relief in Case No. 2000 CR 1272, requesting the trial court to vacate his sentence. The trial court
{¶ 5} Thereafter, on August 7, 2008, the trial court resentenced Barber pursuant to
{¶ 6} Barber timely appealed from his resentencing in both cases. In that appeal, Barber raised various ineffective assistance of counsel claims with respect to his resentencing. Barber also challenged his original sentence in Case No. 2000 CR 1272, claiming the trial court erred in failing to merge allied offenses of similar import. On March 5, 2010, we affirmed Barber’s resentencing and overruled his allied offense claim in State v. Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831.
{¶ 7} Following that appeal, on June 14, 2011, Barber filed a pro se motion for resentencing in Case No. 2000 CR 1272. In support of this motion, Barber argued that he should have been resentenced pursuant to
{¶ 8} After his fourth appeal, on October 3, 2013, Barber filed a combined motion for sentencing and motion for an allied offense determination in both Case Nos. 2000 CR 1272 and 2000 CR 497. In the motions, Barber argued that the trial court’s August 8, 2008 nunc pro tunc judgment entry of conviction and sentence did not properly notify him whether post-release control was mandatory or discretionary. He also claimed that the trial court failed to make findings required under
{¶ 9} Barber now appeals from the trial court’s decision overruling his combined motion for sentencing and motion for an allied offense determination. In his brief, Barber raises three assignments of error that mirror the same three arguments raised in his motions before the trial court.
{¶ 10} Upon review, we conclude that the trial court properly found that Barber’s three claims are barred by res judicata. “Res judicata bars re-litigation of a matter that was raised or could have been raised on direct appeal. * * * Otherwise, appeals could be
{¶ 11} In the present appeal, Barber’s three assignments of error each challenge an aspect of his August 2008 resentencing. However, Barber previously filed a direct appeal from his resentencing in Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831, wherein this court affirmed the judgment of the trial court. Barber is now trying to raise additional claims concerning his resentencing, claims which could have been raised in the prior appeal. Barber is also attempting to raise an allied offense claim, a claim which this court has previously addressed in his appeals from the August 2008 resentencing and the trial court’s decision denying his June 2011 motion for resentencing. Accordingly, Barber’s three claims are barred by res judicata, as they either could have been raised or were raised in his prior appeals.
{¶ 12} Barber’s three assignments of error are overruled and the judgment of the trial court is affirmed.
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Dylan Smearcheck
Curtis L. Barber
Hon. Dennis J. Langer