STATE OF OHIO, PLAINTIFF-APPELLEE vs. VINCENT FRANKLIN, DEFENDANT-APPELLANT
No. 95991
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 29, 2011
2011-Ohio-4953
BEFORE: Keough, J., Kilbane, A.J., and Celebrezze, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-396833
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Ronni Ducoff
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} In this appeal from a resentencing to impose postrelease control, defendant-appellant, Vincent Franklin, challenges his guilty plea. For the reasons that follow, we affirm.
I
{¶ 2} In 2001, Franklin pled guilty to two amended counts of rape in Case No. CR-396833 and one count of felonious assault in Case No. CR-400681. Before accepting his plea, the trial court determined that Franklin was making the plea
{¶ 3} More than nine years later, in October 2010, the trial court resentenced Franklin in Case No. CR-396833 to properly impose five years of mandatory postrelease control. Franklin now appeals from that resentencing.
II
{¶ 4} Under
{¶ 5} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.
{¶ 6} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶ 7} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.”
{¶ 9} Res judicata bars the further litigation in a criminal case of issues that were or could have been raised previously in a direct appeal. State v. Leek (June 21, 2000), Cuyahoga App. No. 74338, citing State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Franklin could have raised the voluntariness of his plea on direct appeal, but did not do so.
{¶ 10} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the Ohio Supreme Court clarified 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. However, “res judicata still 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 ¶40. Hence, “[t]he scope of an appeal from a
{¶ 11} Thus, in State v. Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927, this court held that in light of Fischer, the issue of merger of allied offenses was barred by res judicata on the defendant‘s appeal from resentencing to impose postrelease control because the issue did not arise from the resentencing hearing. See, also, State v. Hunter, Cuyahoga App. Nos. 95111, 95112, and 95113, 2011-Ohio-1682 (the only issues a defendant can raise on appeal after the resentencing hearing to correctly impose postrelease control are issues arising at the resentencing hearing).
{¶ 12} We reach the same result here. Franklin did not bring a direct appeal from his original sentencing in 2001, nor did he seek a delayed appeal challenging his guilty plea, but now seeks to vacate his plea, more than nine years later. As Fischer makes clear, because the validity of Franklin‘s plea is not an issue arising from the resentencing hearing, any attempt by Franklin to now challenge his plea is barred by the doctrine of res judicata.
{¶ 13} Appellant‘s first and second assignments of error are overruled.
III
{¶ 14} After Franklin‘s counsel filed a brief on appeal, Franklin, pro se, filed a supplemental assignment of error with accompanying brief. Before filing his supplemental brief, Franklin neither sought nor obtained leave from this court as required. See Loc.R. 16 of the Eighth Appellate District. Furthermore, Franklin is represented by
{¶ 15} “A defendant has no right to a ‘hybrid’ form of representation wherein he is represented by counsel, but also acts simultaneously as his own counsel. McKaskle [v. Wiggins (1984)], 465 U.S. [168,] 183, 104 S.Ct. [944,] 953, 79 L.Ed.2d [122,] 136; State v. Thompson (1987), 33 Ohio St.3d 1, 6, 514 N.E.2d 407, 414.”
{¶ 16} Accordingly, Franklin‘s supplemental brief is ordered stricken from the record and his supplemental assignment of error is overruled. See, e.g., State v. Ridley, Lucas App. No. L-10-1314, 2011-Ohio-3496 (appellant‘s pro se motion to strike telephone recordings from record on appeal ordered stricken from record where appellant was represented by counsel).
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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE