STATE OF OHIO v. MARK A. BARCLAY
C.A. No. 25646
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 21, 2011
[Cite as State v. Barclay, 2011-Ohio-4770.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 02 02 0305(C)
Dated: September 21, 2011
CARR, Presiding Judge.
{1} Appellant, Marc A. Barclay, appeals the judgment of the Summit County Court of Common Pleas. This Court affirms, in part, and vacates, in part.
I.
{2} On February 12, 2002, Barclay was indicted by the Summit County Grand Jury on one count of aggravated murder, in violation of
{4} On July 12, 2010, Barclay filed a motion to discharge. In responding to the motion, the State acknowledged that the 2002 sentencing entry did not properly impose post-release control and requested that Barclay be resentenced de novo. The trial court conducted a resentencing hearing on August 25, 2010, and subsequently issued a sentencing entry on September 20, 2010. Barclay filed a notice of appeal on October 20, 2010.
{5} On appeal, Barclay raises three assignments of error.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN NOT DISMISSING THE APPLELLANT‘S INDICTMENT(S) THAT ARE CONSTITUTIONALLY INSUFFICIENT TO CHARGE ANY CRIMINAL OFFENSE WHATSOEVER UNDER OHIO LAW, VIOLATING APPELLANT‘S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION[.]”
{6} In his first assignment of error, Barclay argues that the trial court erred in not dismissing the indictment. This Court disagrees.
{7} In support of his first assignment of error, Barclay argues that the indictment contained several defects which rendered it insufficient to charge an offense. The State counters that because Barclay did not raise these claims on direct appeal, he is now barred from raising the issue on the basis of res judicata.
{8} “A determination of whether the doctrine of res judicata bars an action is a question of law which this Court reviews de novo.” Brott v. Green, 9th Dist. No. 21209, 2003-Ohio-1592, at ¶11, citing Davis v. Coventry Twp. Bd. of Zoning Appeals (Feb. 14, 2001), 9th
{9} In State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus, the Supreme Court of Ohio articulated the parameters of the doctrine of res judicata:
“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.”
{10} (Emphasis added.) This Court has recognized that, by the plain language of Perry, “the doctrine of res judicata is directed at procedurally barring convicted defendants from relitigating matters which were, or could have been, litigated on direct appeal.” State v. Widman (May 16, 2001), 9th Dist. No. 00CA007681.
{11} Barclay exercised his right to appeal to this Court in 2002. On appeal, Barclay raised one assignment of error in which he argued that his convictions were against the manifest weight of the evidence. This Court affirmed Barclay‘s convictions on October 15, 2003. State v. Barclay, 9th Dist. No. 21336, 2003-Ohio-5468. As Barclay did not raise any issues with the indictment in his appeal of right, he is now barred from raising that issue in a subsequent action. Widman, supra.
{12} The first assignment of error is overruled.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON THE APPELLANT WHEN NO STATUTORY AUTHORITY EXIST[S] FOR THE IMPOSITION OF SUCH, VIOLATING THE APPELLANT‘S CONSTITUTIONAL RIGHTS PURSUANT TO THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
ASSIGNMENT OF ERROR III
“THE TRIAL COURT ERRED IN IMPOSING ANY SENTENCE UPON APPELLANT DUE TO THE UNREASONABLE DELAY IN IMPOSING A VALID SENTENCE WHICH RESULTED IN A LOSS OF JURISDICTION, VIOLATING APPELLANT‘S RIGHT TO DUE PROCESS UNDER THE UNITED STATES AND OHIO CONSTITUTION[.]”
{13} In his second assignment of error, Barclay argues that the trial court was without authority to impose consecutive sentences. In his final assignment of error, Barclay argues that the trial court was without authority to resentence him due to unreasonable delay. This Court disagrees with both propositions.
{14} We address Barclay‘s second and third assignments of error together as both deal with the trial court‘s authority to impose sentence. In support of his second assignment of error, Barclay argues that the trial court was without authority to impose consecutive sentences without first making certain findings of fact. Barclay further argues that the Supreme Court of Ohio‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, is unconstitutional and “nothing more than judicial expansion of jurisdiction by fiat, as it relates to consecutive sentences.” In support of his third assignment of error, Barclay argues that the trial court was without jurisdiction to resentence him in 2010 because there was an unreasonable delay between the time he was found guilty and the time a lawful sentence was imposed. Barclay contends that the trial court failed to comply with
{15} The Supreme Court of Ohio has held that an error in post-release control notification does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. In Fischer, the Supreme Court held that “when a judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside.” Id. at ¶26. The Court reasoned that “[n]either the Constitution nor common sense commands anything more.” Id. The new sentencing hearing that a defendant is entitled to “is limited to proper imposition of postrelease control.” Id. at ¶29. The Court also held that res judicata “applies to other aspects of the merits of a conviction, including the determination of guilt and the lawful elements of the ensuing sentence.” Id. at paragraph three of the syllabus.
{16} Moreover,
{17} This case does not involve a scenario where the trial court refused to impose a sentence on an offender. Rather, Barclay was sentenced immediately after he was found guilty
{18} Barclay‘s first assignment of error is overruled. With respect to the second and third assignments of error, the judgment of the Summit County Court of Common Pleas is vacated to the extent the court exceeded its authority and resentenced Barclay. The trial court‘s decision to properly impose a mandatory five-year period of post-release control on Barclay‘s sentence is affirmed.
Judgment affirmed in part, and vacated in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
MOORE, J.
CONCUR
APPEARANCES:
MARK A. BARCLAY, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.