THE STATE OF OHIO, APPELLANT, v. REYNOLDS, APPELLEE.
No. 96-229
SUPREME COURT OF OHIO
June 25, 1997
79 Ohio St.3d 158 | 1997-Ohio-304
Submittеd March 19, 1997. APPEAL from the Court of Appeals for Erie County, No. E-95-041.
Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
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{¶ 1} On June 26, 1986, appellant Larry Reynolds was convicted of aggravated robbery with a firearm specification. Reynolds was sentenced to not less than ten years nor more than twenty-five years for the aggravated robbery. He was sentenced to an additional three years for the firearm specification, which was to be served consecutively with the sentence for aggravated robbery.
{¶ 2} Reynolds appealed his conviction. On June 26, 1987, Reynolds‘s conviction was overturned and he was awarded a new triаl. At his retrial, on May 26, 1988, Reynolds was again convicted of aggravated robbery with a firearm specification.
{¶ 3} Reynolds appealed his conviction again. On September 29, 1989, the court of appeals affirmed Reynolds‘s conviction.
{¶ 4} On August 23, 1993, pursuant to
{¶ 5} The appellate court held that Reynolds‘s counsel was not ineffective for failing to anticipate the holdings in Gaines and Murphy.1 Accordingly, the appellate court denied Reynolds‘s request to reopen his appeal.
{¶ 6} However, in dicta, the appellate court stated that the holdings in Gaines and Murphy were to be applied retroactively, but found that there was no evidence to support the conviction for а firearm specification. Nevertheless, the court of appeals did not order any remand or reversal.
{¶ 7} Based on the appellate court‘s dicta on the retroactive application of the holdings in Gaines and Murphy, Reynolds filed a “Motion to Correct or Vacate Sentence” with the trial court, asserting that the state failed tо prove the firearm that he allegedly used in the aggravated robbery was operable beyond a reasonable doubt, thereby mandating vacation of the sentence for the firearm specification. The trial court granted the motion and vacated the conviction and sentence for the firearm specification.
{¶ 8} The state appealed the trial court‘s ruling. The court of appeals affirmed the trial court‘s decision that vaсated Reynolds‘s sentence for the firearm specification.
{¶ 9} The cause is now before this court upon the allowance of a discretionary appeal.
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellant.
David H. Bodiker, Ohio Public Defender, Timi J. Townsend, Assistant Public Defender for appellee.
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LUNDBERG STRATTON, J.
{¶ 10} The state asserts several propositions of law in suрport of the premise that Reynolds is barred from arguing that there was insufficient evidence that the firearm allegedly used in the robbery was operable. In particular, the state alleges that Reynolds‘s Motion to Correct or Vaсate Sentence for a firearm specification was a motion for postconviction relief which was barred by res judicata because Reynolds failed to raise the issue of the operability of the gun at trial or in his direct appеal. We find the state‘s argument persuasive, and for the following reasons, we reverse the judgment of the court of appeals.
{¶ 11} A petition for postconviction relief,
“Any person who has been convicted of a criminal offense * * * and who claims that there was such a denial or infringement of the person‘s rights as to render the judgment void or voidable under the Ohio Constitutiоn or the Constitution of the United States may file a petition in the court that imposed the sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence * * *.”
{¶ 12} Under this definition, wherе a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 13} In the case at bar, Reynolds, subsequent to the affirmance of his conviction, filed a Motion to Correct or Vacate Sentence with the trial court, seeking to vacate his sentence for a gun specification because the state allegedly did not prove that the firearm used in the robbery was operable beyond a reasonable doubt under Gaines and Murphy as retroactively applied. Accordingly, Reynolds alleged that his sentence for the firearm specification was illegal or otherwise constitutionally repugnant and should be vacated.
{¶ 14} Reynolds‘s Motion to Correct or Vacate Sentence, despite its сaption, meets the definition of a motion for postconviction relief set forth in
{¶ 15} Accordingly, we find that Reynolds‘s Motion to Correct or Vacate Sentence is a petition for postconviction relief as defined in
{¶ 16} Because Reynolds‘s motion was a petition for postconviction relief, we also find that it is barred by res judicata. In State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, at the syllabus, we held:
“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 have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” (Emphasis added.)
{¶ 17} It is established that, pursuant to res judicata, a defendant cannot raise an issue in a motion for postсonviction relief if he or she could have raised the issue on direct appeal. State v. Duling (1970), 21 Ohio St.2d 13, 50 O.O.2d 40, 254 N.E.2d 670.
{¶ 18} Reynolds claims that controlling law in the Sixth Appellate District, at the time of his direct appeal, was that a firearm specification required no independent evidence of operability of the firearm beyond the evidence required to establish the use of a deadly weapon to prove aggravated robbery. State v. Vasquez (1984), 18 Ohio App.3d 92, 18 OBR 455, 481 N.E.2d 640. Reynolds claims the fact that Vasquez was later overturned by this court in Gaines precludes the application of res judicata to a postconviction motion seeking application of Gaines. Reynolds reasons that the Vasquez decision was controlling, unless and
{¶ 19} Reynolds correctly cites the law as tо what is controlling authority. However, there was nothing to prevent Reynolds from appealing the issues of operability and proof of operability of a firearm. Reynolds claims that the controlling authority in his appellate district at the time of his appeal was Vasquez. However, this did not bar Reynolds from appealing these issues. Even if the appellate court had cited its own decision in Vasquez and found against Reynolds, he could have then appealed to this сourt, which could have reversed or modified Vasquez. In fact, the appellate court‘s request for certification of Gaines cited Vasquez as one of the cases in conflict with Gaines as to the evidence required to prove operability of a firearm. Gaines, 46 Ohio St.3d at 66, 545 N.E.2d at 69.
{¶ 20} In other words, there was nothing that prеcluded Reynolds from directly appealing the issues of operability of the firearm and the proof required to show operability. As a result, he is precluded from arguing these issues in a petition for postconviction relief pursuant to res judicata.
{¶ 21} Reynolds also argues that Gaines and Murphy should apply retroactively in a petition for postconviction relief even when not raised on direct appeal. We decline to accept this position to preserve finality. Further, retroactive аpplication of Gaines and Murphy would be irrelevant in this case because we have recently decided State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541, which, if applied retroactively to the facts of the case at bar, would have upheld the firearm specification аgainst Reynolds despite any application of Gaines and Murphy.3
{¶ 23} Therefore, the trial court erred in vacating Reynolds‘s sentence for the firearm specification. Accordingly, we reverse the judgment of the court of appeals and reinstate Reynolds‘s sentence for the firearm specification.
Judgment reversed.
MOYER, C.J., DICKINSON, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, J., concurs in judgment only.
CLAIR E. DICKINSON, J., of the Ninth Appellate District, sitting for RESNICK, J.
Notes
Under the facts of the case at bar, witness Kelly Ann Gibson, a cashier at the IGA, testified that two men came into the store. Both were wearing ski masks and both were holding guns. They indicated that “this is a robbery.” While still holding the “silver” gun, one of the men (later identified by fingerprints as Larry Reynolds) jumped on top of the shopping carts and into the office and took a cash register drawer out of the safe. He exited the office, came over to Gibson, and told hеr to open her cash register drawer. She complied and Reynolds took the cash out of her drawer.
Under the circumstantial test laid out in Thompkins, this evidence is sufficient to sustain a conviction for a firearm specification. Two masked men waving guns stated that they arе committing a robbery. The fact pattern in Thompkins is almost identical to that in the case at bar.
As Reynolds argued in his brief, if the holdings in Gaines and Murphy are now and have been the law, then res judicata clearly applies to his motion for postconviction relief because Reynolds should have argued that Gaines and Murphy applied to his case on his direct appeal. He failed to make such an argument. Accordingly, the necessary conclusion to Reynolds‘s argument supports our holding.