State v. SimsState v. Sims
WALSH, P.J.
{¶1} Defendant-appellant, Jeffery Sims, appeals the decision of the Clermont County Court of Common Pleas, denying his petition for postconviction relief. We affirm the trial court‘s decision.
{¶2} On November 8, 2004, appellant pled guilty to counts of failure to comply with an order or signal of a police officer in violation of
{¶3} In his first five assignments of error, appellant contends that his Sixth Amendment right to a jury trial was violated when he was sentenced to a greater than minimum prison term. The crux of appellant‘s argument is that, in accordance with Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, a jury rather than the trial court should have decided his punishment. In his sixth assignment of error, appellant claims that his trial counsel was ineffective for failing to raise the alleged Blakely error at trial.
{¶4} The decision to grant or deny a petition for postconviction relief is committed to the discretion of the trial court. State v. Kruse, Warren App. Nos. CA2005-10-112, CA2005-10-113, 2006-Ohio-2510, ¶5, citing State v. Watson (1998), 126 Ohio App.3d 316, 324. Pursuant to
{¶5} We recognize that the Supreme Court of Ohio, in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, found that the Blakely decision impacts Ohio‘s sentencing scheme, and held unconstitutional parts of the sentencing scheme under which appellant was sentenced. However, it is well-established that a defendant cannot raise an issue in a petition for postconviction relief if he could have raised the issue on direct appeal. State v. Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304; State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, syllabus. The doctrine of res judicata precludes a convicted defendant “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 the trial which resulted in that judgment of conviction or on appeal from that judgment.” Szefcyk at 96. Nothing precluded appellant from directly appealing the constitutionality of his sentence. Consequently, appellant cannot now use this claim as a basis for a petition for postconviction relief. Id.
{¶6} Similarly, when a claim of ineffective assistance of counsel is based solely upon evidence in the record, as in the instant case, such a claim could have been raised upon direct appeal and is subsequently barred by res judicata in a postconviction relief proceeding. See State v. Reynolds, 79 Ohio St.3d 158, 161, 1997-Ohio-304 (“pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post conviction relief if he or she could have raised the issue on direct appeal“); State v. Smith (1997), 125 Ohio App.3d 348; State v.Lentz, 70 Ohio St.3d 527, 1994-Ohio-532.
{¶7} The issues raised by appellant‘s petition for postconviction relief are barred by res judicata, and consequently, the trial court did not err by dismissing the petition. Appellant‘s first six assignments of error are overruled.
{¶8} In assignment of error number eight, appellant alleges that the trial court made insufficient findings of fact and conclusions of law when ruling on his petition for postconviction relief.
{¶9}
{¶10} In the present case, the trial court issued a judgment entry addressing each of appellant‘s claims and explaining why each was without merit. Upon review, we conclude that the trial court‘s judgment entry includes adequate findings of fact and conclusions of law to satisfy the requirements of
{¶11} In his final assignment of error, appellant contends that the trial court‘s decision conflicts with the United States Supreme Court‘s Blakely decision, and, pursuant to
{¶12} Appellant has a fundamental misunderstanding of the function and purpose of
{¶13} “Whenever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by another court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.”
{¶14} The plain language of this section indicates that, for a conflict to warrant certification, the reasoning and judgment of two courts of appeals must be in conflict.
{¶15} Judgment affirmed.
BRESSLER and HENDRICKSON, JJ., concur.
Hendrickson, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to