660 N.E.2d 532 | Ohio Ct. App. | 1995
Petitioner-appellant ("appellant") Donald W. Harmon appeals from an order of the Court of Common Pleas of Allen County dismissing his petition for postconviction relief pursuant to R.C.
At a June 3, 1994 pretrial hearing, the appellant withdrew his not guilty plea and tendered a guilty plea to an amended indictment of grand theft with a prior offense of violence specification. The amended indictment deleted the allegations of the appellant's two prior theft convictions in exchange for the appellant's plea of guilt, lowering the appellant's grand theft indictment to a felony of the fourth degree. The trial court accepted the appellant's guilty plea, and in July 1994 sentenced the appellant to an indefinite term of three to five years confinement in a state penal institution. The appellant did not directly appeal his final judgment of conviction pursuant to App.R. 4(A).
On November 7, 1994, the appellant petitioned the trial court for postconviction relief, claiming that the trial court unconstitutionally applied R.C.
From this final order the appellant brings this appeal.
"Assignment of Error No. 1
"To enhance a sentence using an alleged prior conviction of violence which occurred prior to the enactment of the enhancement statute violates Articles I and II and Sections 10 and 28 of the Ohio Constitution."
The appellant's first assignment of error is barred by the doctrine of res judicata. In State v. Perry (1967),
"Constitutional issues cannot be considered in postconviction proceedings under Section
The appellant did not directly appeal his final judgment of conviction as permitted by right under App.R. 4(A). The appellant's contention that a statute imposing an additional penalty based upon the existence of a previous conviction is an ex post facto law could have been raised on direct appeal based upon the evidence contained in the trial court record. Consequently, the appellant is now precluded from raising this constitutional argument in a petition for postconviction relief. Furthermore, the appellant fails to offer any evidence dehors the record in support of his constitutional claim.
The appellant's first assignment of error is overruled.
"Assignment of Error No. 2
"The trial court erred by imposing an indefinite term of imprisonment for a non-violent fourth degree felony theft offense when the indictment failed to contain a valid specification in the required form as mandated by Revised Code Section
The appellant did not contest the validity of the specification contained in the indictment in his petition for postconviction relief. Failure to raise this matter at the trial court level constitutes a waiver of this issue at the appellate court level. See State v. 1981 Dodge Ram Van (1988),
Furthermore, we conclude that the appellant's claims in this assignment of error are demonstrated on the record, and therefore could have been raised on direct appeal from the judgment of conviction. Therefore, the appellant's second assignment of error is also barred by the doctrine of resjudicata. See State v. Perry,
The appellant's second assignment of error is overruled.
Judgment affirmed.
THOMAS F. BRYANT, P.J., and HADLEY, J., concur.
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