STATE OF OHIO, Plaintiff-Appellee, vs. LENWARD PULLIAM, Defendant-Appellant.
Case No. 16CA3759
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: 01/13/17
[Cite as State v. Pulliam, 2017-Ohio-127.]
DECISION AND JUDGMENT ENTRY
Lenward Pulliam, London, Ohio, Pro Se Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
McFarland, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court judgment denying Appellant Lenward Pulliam‘s motion for re-sentencing. On appeal, Appellant contends that 1) thе trial court erred by failing to make the statutory findings required before imposing consecutive sentences; 2) the trial court erred in failing to grant his motion for re-sentencing and by failing to hold a merger hearing as to counts three and five; and 3) the trial court erred by not making findings as to the major drug offender portion of his sentence. We find all of Appellant‘s arguments are barred by the doctrine of
FACTS
{¶2} We set forth the facts as determined previously in Appellant‘s direct appeal of this matter. Appellant, Lenward Pulliam, was indicted on February 1, 2013 on a multi-count fеlony indictment containing thirteen felony counts involving possession and trafficking in drugs (cocaine, heroin, oxycodone, oxymorphone, hydrocodone, and alprazolam), as well as one count of tampering with evidence. As a result of plea negotiations, Appellant entered into a plea agreement that included an agreed sentence of eighteen years, which required Appellant to plead guilty to two of the first-degree felony counts (trafficking in heroin and trafficking in oxycodone, with a major drug offender specification), in exchange for the State‘s dismissal of the remaining eleven counts contained in the indictment. Upon thе acceptance of Appellant‘s guilty pleas, the trial court sentenced Appellant, as recommended and agreed, to eighteen years in prison, which consisted of an eleven-year term and a seven-year term, to be served consecutively.
{¶3} Appellant appealed his convictions and sеntences, arguing that the trial court erred when it imposed consecutive sentences without making
{¶4} Thirteen months later, Appellant filed a motion in the trial court entitled “Defendant‘s Motion for Re-Sentencing Pursuant to Crim.R. 52(B) Sentence Contrary to Law failing to hold a Merger Hearing.” Appellant‘s motion contained three arguments. The first argument related to the trial court‘s imposition of consecutive sentences. The second argument related to the trial court‘s imposition of consecutive sentences fоr what Appellant claimed were allied offenses of similar import, without holding a merger hearing. Appellant‘s third argument claimed that the trial court failed to make necessary findings before imposing sentence on the mandatory drug offender portion of Appellant‘s sentence.
{¶5} On May 24, 2016, the trial court issued a judgment entry denying Appellant‘s motion for re-sentencing. The trial court denied Appellant‘s
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED BY FAILING TO MAKE STATUTORY FINDINGS AS TO THE CONSECUTIVE SENTENCES, PURSUANT TO
II. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT‘S MOTION FOR RE SENTENCING [SIC] PURSUANT TO CRIM.R. 52(B) SENTENCE CONTRARY TO LAW AND BY FAILING TO HOLD A MERGER HEARING AS TO COUNTS {3} THREE AND COUNTS {5} FIVE OF THE INDICTMENT.
III. THE TRIAL COURT ERRED BY NOT MAKING FINDINGS AS TO THE MAJOR DRUG OFFENDERS [SIC] SENTENCE, PURSUANT TO
STANDARD OF REVIEW
{¶6} As Appellant‘s current appeal stems from the trial court‘s denial of his post-conviction motion for re-sentencing, and because each of his current arguments challenge the trial court‘s imposition of sentence in connection with his original convictions, we set forth our standard of review when reviewing felony sentences. When reviewing felony sentences we
ASSIGNMENT OF ERROR I
{¶7} In his first assignment of error, Appellant contends that the trial court erred by failing to make the statutory findings required by
{¶8} The current appeal stems from the denial of a post-conviction motion for re-sentencing. A review of the record indicates that Appellant raised an argument identical to this argument in his direct appeal of this matter. As noted above, we denied the argument based upon the fact that Appellant‘s consecutive sentences were imposed pursuant to a negotiated
{¶9} Subsequent to the issuance of that decision, the Eleventh District Court of Appeals certified a conflict to the Supreme Court of Ohio between itself and the Fourth and Second Districts on the following issue:
“In the context of a jointly-recommended sentence, is the trial court required to make conseсutive-sentence findings under
R.C. 2929.14(C) in order for its sentence to be authorized by law and thus not appealable?” State v. Sergent, 2015-Ohio-2603, 38 N.E.3d 461, ¶ 36 (11th Dist.)
The Supreme Court of Ohio addressed the conflict in State v. Sergent, 2016-Ohio-2696, -- N.E.3d --, and answered the question in the negative, finding “that such a sentence is ‘authorized by law’ and not appealable. Thus, the reasoning we employed in denying this argument in Appellant‘s direct appeal of this matter has been deсlared valid and sound.
{¶10} “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 hаve been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus. Here,
ASSIGNMENT OF ERROR II
{¶11} In his second assignment of error, Appellant contends that the trial court erred in failing to grant his motion for re-sentencing, which argued that his consecutive sentences were contrary to law as they were allied offenses of similar import, and that the trial court should have held a merger hearing. Appellant specifically contends that the two counts to which he pled guilty, count three, trafficking in drugs/heroin, and count five, trafficking in drugs/oxycodone/major drug offender, constituted allied offenses of similar import which should have merged for purposes of sentencing. The State contends that this argument is barred by the doctrine of res judicata bеcause the argument could have been raised on direct appeal, but was not. Once again, we agree with the State.
{¶12} Although this Court has acknowledged that “[a] criminal defendant has the right to appeal the issue of allied offenses under
“when a trial court finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied, imposing a separate sentence for each offense is not contrary to law, and any error must be asserted in a timely appeal or it will be barred by principles of res judicata.” State v. Pigge, 4th Dist. Ross No. 09CA3136, 2010-Ohio-6541, ¶ 38; citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph one of the syllabus. State v. Williams, 2016-Ohio-7658, -- N.E.3d--, ¶ 26; relying on State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8-9. (Emphasis added).
As we have discussed, Appellant already had a direct appeal of his convictions and sentences. He raised no arguments in his direct appeal related to the trial court‘s failure to hold a merger hearing. Further, although he did argue in his direct appeаl that the trial court erred in imposing consecutive sentences, he did not argue that the consecutive sentences were improper because his offenses were allied offenses of similar import.
{¶13} As set forth above, the doctrine of res judicata “bars a convicted defendant who was represented by counsеl 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 trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” State v. Szefcyk, supra, at syllabus. Because
ASSIGNMENT OF ERROR III
{¶14} In his third assignment of error, Appellant contends that the trial court erred by not making findings as to the major drug offender portion of his sentence, pursuant to
{¶15} We initially conclude that, for essentially the same reason the second assignment of error is barred by rеs judicata, this argument is also barred by res judicata. The lack of any specific findings as to the mandatory drug offender portion of Appellant‘s sentence was known to Appellant at the time of his direct appeal. As such, he should have raised the argument at that time. Because it was capable of being raised but was nоt raised, in accordance with the law and reasoning set forth above, the argument is now barred by the doctrine of res judicata.
{¶16} Further, Appellant has presented us with no authority stating that a trial court‘s failure to make specific findings prior to imposing sentence on a major drug offender, let alone in the context of an аgreed plea and sentence, renders a sentence void, thereby removing it from the application of the principles of res judicata. In the recent Supreme Court of Ohio case of State v. Williams, supra, the Court discussed the evolution of its “void sentence jurisprudence,” and noted its prior determinations that failure to impose a statutorily mandated term of post-release control, failure to include a mandatory driver‘s license suspension in the offender‘s sentence, and failure to include a mandatory fine in the sentence all result in
{¶17} Finally, in an abundance of caution, we note that even if res judicata does not apply, at least one court has found that a plea of guilty to a major drug offender specification constituted consent to having the issue determined by a court and not a jury and thus waived any potential objection to judicial fact-finding on the issue. State v. Newton, 2nd Dist. Montgomery No. 24154, 2011-Ohio-2186, ¶ 23 (and further reasoning that “[a] plea of
{¶18} As such, we find that this argument is barred by both the doctrine of res judicata, as well as the fact that his sentence is not subject to appellate review as it was imposed pursuant to an agreed plea and sentence. Thus, Appellant‘s third assignment of error is overruled. Accordingly, having found no merit in any of the assignments of error raised by Appellant, the trial court‘s decision denying Appellant‘s motion for re-sentencing is affirmed.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.
The Court finds thеre were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.