STATE OF OHIO, Plaintiff-Appellee, v. LONNIE RARDEN, Defendant-Appellant.
CASE NO. CA2015-12-214
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
5/23/2016
[Cite as State v. Rarden, 2016-Ohio-3108.]
M. POWELL, P.J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2006-07-1271
Timothy R. Evans, 110 North Third Street, Hamilton, Ohio 45011, for defendant-appellant
OPINION
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Lonnie Rarden, appeals a decision of the Butler County Court of Common Pleas denying his Motion to Void Sentence and Void Entries of Convictions.
{¶ 2} In 2006, the Butler County Grand Jury returned two indictments collectively charging appellant with several felonies and misdemeanors, including one count of felony escape, two counts of felony сomplicity to perjury, and one count of felony complicity to
{¶ 3} In 2008, shortly before this court issued its decision on appeal, appellant moved the trial cоurt to vacate his sentence, arguing the trial court had improperly excluded evidence from trial. Construing the motion as a petition for postconviсtion relief, the trial court denied appellant‘s petition as untimely. Appellant did not appeal from the trial court‘s decision.
{¶ 4} In 2010, appellant moved the trial court to vacate his sentence, arguing he had not been properly informed of his postrelease control obligations. Finding merit to aрpellant‘s claim, the trial court held a resentencing hearing limited to the proper advisement and imposition of postrelease control. We аffirmed the trial court‘s decision and the Ohio Supreme Court declined review. State v. Rarden, 12th Dist. Butler Nos. CA2010-04-095, CA2010-05-106, and CA2010-05-126 (Feb. 7, 2011) (Accelerated Calendar Judgment Entry); State v. Rarden, 130 Ohio St.3d 1497, 2011-Ohio-6556.
{¶ 5} In 2013, appellant once again moved the trial court to vaсate his sentence. As it had done previously, the trial court construed appellant‘s motion as a petition for postconviction relief and deniеd the petition as untimely. The trial court also found that appellant‘s petition was barred by the doctrine of res judicata. We affirmed the trial court‘s decision and the Ohio Supreme Court declined review. State v. Rarden, 12th Dist. Butler No. CA2013-07-125, 2014-Ohio-564; State v. Rarden, 139 Ohio St.3d 1407, 2014-Ohio-2245.
{¶ 6} On September 16, 2015, appellant filed a motion requesting the trial court to void his five-year prison sentencе for his escape conviction and to void his convictions for
{¶ 7} Appellant appeals, raising two assignments of error.
{¶ 8} Assignment of Error No. 1:
{¶ 9} THE COURT ERRED IN FAILING TO VOID DEFENDANT‘S CONVICTION OF THE THIRD DEGREE FELONY FOR THE CRIME OF ESCAPE.
{¶ 10} Appellant argues that because the jury verdict form relating to his escape conviction failed to state hе was guilty of a third-degree felony or to set forth the requisite elements of a third-degree felony escape, he was only convicted of a first-degree misdеmeanor escape. As a result, appellant asserts, his five-year prison sentence for escape is void. Appellant cites
{¶ 11}
{¶ 12} In Pelfrey, the Ohio Supreme Court held that “pursuant to the clear language of
{¶ 13} We find that the trial court properly denied appellant‘s motion to void his escape sentence under the doctrine of res judicata. Pursuant to that doctrine, a convicted defendant who was represented by counsel is barred from raising and litigating issues that were raised or could have beеn raised at trial or on direct appeal from the judgment of conviction. State v. Van Tielen, 12th Dist. Brown No. CA2015-09-025, 2016-Ohio-1288, ¶ 19.
{¶ 14} In the case at bar, while appellant filed a direct appeal frоm his conviction post Pelfrey, he did not raise any arguments under Pelfrey or
{¶ 15} We recognize that an exception to the application of res judicata applies to a void judgment. Walburg at ¶ 7; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶ 30. However, the failure of a jury verdict form to comply with
{¶ 16} Appellant‘s first assignment of error is accordingly overruled.
{¶ 17} Assignment of Error No. 2:
{¶ 18} THE COURT ERRED IN FAILING TO FIND THAT DEFENDANT‘S CONVICTIONS FOR PERJURY AND TAMPERING WITH EVIDENCE WERE VOID AND IN FAILING TO ORDER A NEW TRIAL FOR DEFENDANT ON THESE COUNTS.
{¶ 19} Appellant argues that the trial court erred in denying his motion to void his convictions for complicity to perjury and tampering with evidence. Aрpellant asserts that in answering the jury‘s questions regarding these offenses, the trial court improperly directed the jury to make certain findings of fact and “in essenсe deprived [appellant] of the right to a jury trial.”
{¶ 20} A trial court is not prohibited from clarifying its instructions or answering a jury‘s questions during deliberations. State v. Hibbard, 12th Dist. Butler No. CA2002-05-129, 2003-Ohio-5104, ¶ 11. Rather, “where, during the course of its deliberations, a jury requests further instruction, or clarification of instructions previously given, a trial court has discretion to determine its response to thаt request.” State v. Carter, 72 Ohio St.3d 545, 553 (1995).
{¶ 21} The record shows that during deliberations, the jury asked the trial court to clarify which official proceedings were involved regarding the two counts of complicity to perjury, and in what legal proceeding the evidence was to be used in the complicity to
{¶ 22} In any event, the record shows that at the time of his trial, appellant was aware of both the jury‘s questions and the trial court‘s answers. Appellant did not object to the trial court‘s answers to the jury‘s questions, nor did he raise the issue in his direct appeal. Consequently, res judicata bars appellant from raising the issue now and the trial court properly denied his motion to void his convictions for complicity to perjury and tampering with evidence under the doctrine of res judicata. See State v. Blanda, 12th Dist. Butler No. CA2013-06-109, 2014-Ohio-2234.
{¶ 23} Appellant‘s second assignment of error is overruled.
{¶ 24} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.