STATE OF OHIO, Plaintiff-Appellee, vs. DION M. EVANS, Defendant-Appellant.
Case No. 09CA20
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY
11-29-10
[Cite as State v. Evans, 2010-Ohio-5838.]
ABELE, J.
DECISION AND JUDGMENT ENTRY
APPELLANT PRO SE: Dion M. Evans, #537-957, Ross Correctional Institution, P.O. Box 7010, Chillicothe, Ohio 45601, Pro Se
COUNSEL FOR APPELLEE: Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme Hartley Fountain, Pickaway County Assistant Prosecuting Attorney, 203 South Scioto Street, P.O. Box 910, Circleville, Ohio 43113
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-29-10
ABELE, J.
{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment that overruled a motion for a new trial. A jury found Dion M. Evans, defendant below and appellant herein, guilty of (1) two counts of burglary in violation of
{¶ 2} Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:1
“THE TRIAL COURT ERRED WHEN IT DENIED PETITIONER A NEW TRIAL AFTER IT PROCEEDED IN THE ORIGINAL TRIAL WITHOUT SUBJECT MATTER JURISDICTION.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT PETITIONER A NEW TRIAL ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 3} On the afternoon of August 24, 2006, an alarm sounded at the home of Richard and Sandy Petty near Asheville. Several deputies responded and, when one approached the house, hе observed appellant walk from the Petty home into the attached three car garage. After the deputy ordered appellant to get “down on the ground,” appellant jumped into his car, crashed through the partially opened garage door and sped down the driveway nearly colliding with one of the sheriff‘s cruisers.
{¶ 4} Deputies gave chase, but appellant managed to рut some distance between them before he crashed his vehicle and left on foot. Kenneth Bebout, an Ohio State Wildlife Officer, wаs nearby and joined the deputies in the search. After Officer Bebout observed appellant hiding in a creek bed, the officer alerted the deputies who then took appellant into custody.
{¶ 6} Later that afternoon, the Retherfords returned home to find that their house had been broken into. Among the stolen items were guns, frozen foods and savings bonds that belonged to their dаughter. The bonds had been kept in a fireproof safe in the bedroom. That safe, however, was found in the garage “cracked open.”
{¶ 7} The Pickaway County Grand Jury indicted appellant on two counts of burglary, two counts of theft, the failure to comply with the order of a police officer, safe cracking and receiving stolen property. Appellant pled not guilty and the matter proceeded to a jury trial in November 2006. After hearing the evidence, the jury returned guilty verdicts on all counts. The trial court sentencеd appellant to serve eight years in prison on each burglary charge, twelve months on each theft charge, eighteen mоnths for the failure to comply with the order of a police officer, twelve months for safe-cracking and twelve months for receiving stolen property. The court ordered the sentences on counts one, three, four and seven be served consecutively to each other, and concurrently to counts two, five and six for an aggregate total of eighteen and a half (18½) years in prison. We affirmed appellant‘s conviction and sentence. See State v. Evans, Pickaway App. No. 06CA34, 2007-Ohio-6575.
{¶ 8} Appellant commenced the instant proceeding on April 13, 2009 with his
{¶ 9} We jointly consider appellant‘s two assignment of error. Generally, a motion for new trial must be filed within fourteen days after a jury verdict or judgment.
{¶ 10}
{¶ 11} As for appellant‘s claim that the trial court lacked subject matter jurisdiction (a claim based on his argument the indictment failed to specify the requisite mens rea for two charges against him), we need only point out that a failure to specify mens rea does not render a judgment void, but voidable. See State v. Tucker, Montgomery App. No. 23408, 2010-Ohio-2642, at ¶6; State v. Cool, Summit App. No. 24518, 2009-Ohio-4333, at ¶9. In the case at bar, the trial court engaged in a detailed and thoughtful discussion and refuted appellant‘s argument. We need not, and do not, believe it necessary to review that discussion. Most important, appellant did not raise this issue on direct appeal аnd is now barred from raising it at this late date pursuant to the doctrine of res judicata. Tucker, supra at ¶6; State v. Turner, Cuyahoga App. No. 91695, 2008-Ohio-6648, at ¶¶5-9.
{¶ 12} Furthermore, appellant‘s claim that he received constitutionally ineffective assistance from trial counsel for not raising the above noted issues is also barred by the doctrine of res judicata. Appellant could have, but did not, raise the issue in his first appeal of right.
{¶ 13} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed аnd that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute that mandate pursuant to
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY: _______________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this documеnt constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.