{¶ 2} In 2000, appellant was indicted on one count of aggravated murder, one count of aggravated robbery, and one count of carrying a concealed weapon. Appellant was initially found incompetent to stand trial but was later found competent. On June 19, 2001, appellant was found guilty of one count of voluntary manslaughter, a felony of *2 the first degree, and one count of aggravated robbery, a felony of the first degree. Appellant was acquitted of carrying a concealed weapon. On July 26, 2001, appellant was sentenced to the Lorain Correctional Institution for a period of nine years on the voluntary manslaughter conviction and eight years on the aggravated robbery conviction. Appellant's prison terms were ordered to run consecutive to one another for an aggregate term of seventeen years. Appellant did not file a timely appeal of his sentence. On October 15, 2007, appellant filed a pro se "Motion to Correct Unconstitutionally Imposed Sentence." The court denied the motion and appellant filed the instant appeal asserting three assignments of error.
{¶ 3} His first assignment of error reads:
{¶ 4} "Appellant asserts the sentencing judge committed a dereliction of duty, a violation of R.C.
{¶ 5} First of all, appellant did not file a direct appeal of his sentence. However, a consistent theme throughout appellant's pro se brief is his assertion of issues relating to his sentence that could have been brought on direct appeal. Under his first assignment of error, appellant relies upon the United States Supreme Court's decision inApprendi v. New Jersey (2000),
{¶ 6} Appellant's Apprendi argument could have been raised on a direct appeal from his judgment on sentence. His contention is therefore barred by res judicata.1
{¶ 7} Ancillary to the foregoing analysis, we point out that appellant's assertion that the underlying alleged Apprendi violation represents a "dereliction of duty" in violation of R.C.
{¶ 8} Furthermore, even if the Apprendi issue were properly before this court, appellant filed no transcript of the sentencing proceedings with the appellate record. As a result, he can point to no specific instances in the record of how the alleged Apprendi violation is tantamount to a dereliction of duty in violation of R.C.
{¶ 9} Appellant's second assignment of error asserts:
{¶ 10} "The failure of trial counsel to object to the sentence imposed is an act of dereliction of duty in violation of R.C.
{¶ 11} Appellant's second assignment of error alleges his trial counsel was ineffective for failing to object to the alleged Sixth Amendment violations. For the same reasons discussed under appellant's first assignment of error, this argument lacks merit. Briefly, res judicata bars a claim of ineffective assistance of trial counsel raised for the *5
first time in a postconviction motion where the issue could have been asserted on direct appeal without recourse to evidence dehors the record. State v. Lenz,
{¶ 12} Appellant's second assignment of error lacks merit.
{¶ 13} Appellant's final assignment of error argues:
{¶ 14} "Appellant's consecutive sentences must be vacated because the sentencing judge did not comply with R.C.
{¶ 15} Appellant's final assignment of error suffers from the same procedural infirmity as his two previous, viz., his argument was capable of being asserted on direct appeal and is therefore barred by operation of the doctrine of res judicata from asserting it in a postconviction motion.
{¶ 16} This fatal error aside, the record reveals that the trial court's judgment entry on sentence specifically sets forth the trial court's rationale, pursuant to R.C.
{¶ 17} Appellant's final assignment is overruled.
{¶ 18} For the reasons discussed above, appellant's three assigned errors are without merit and the judgment entry of the Trumbull County Court of Common Pleas is therefore affirmed.
TIMOTHY P. CANNON, J., concurs, COLLEEN MARY OTOOLE, J., dissents.