STATE OF OHIO, Plaintiff-Appellee, - vs - DWAYNE A. STOUTAMIRE, Defendant-Appellant.
CASE NO. 2013-T-0107
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
December 29, 2014
[Cite as State v. Stoutamire, 2014-Ohio-5769.]
COLLEEN MARY O‘TOOLE, J.
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 07 CR 148. Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Dwayne A. Stoutamire, pro se, PID: A532253, Toledo Correctional Institution, 2001 East Central Avenue, P.O. Box 80033, Toledo, OH 43608 (Defendant-Appellant).
COLLEEN MARY O‘TOOLE, J.
{¶1} Dwayne A. Stoutamire appeals from the judgment entry of the Trumbull County Court of Common Pleas, denying his request for a resentencing hearing regarding community service and his motion for alternative payment of court costs. In this current appeal Mr. Stoutamire raises the issue the trial court failed to notify him at sentencing that he could be required to perform community service if his court costs
{¶2} We find the judgment appealed is not a final appealable order, and that we lack jurisdiction. We further find the instant appeal barred by res judicata, as Mr. Stoutamire previously had an opportunity to raise these issues at the trial level and during the direct appeal of his convictions and sentence. Therefore, we affirm the decision of the trial court.
{¶3} In March of 2007, Mr. Stoutamire was indicted on one count of attempted murder with a firearm specification, two counts of having a weapon under a disability, one count of felonious assault with a firearm specification, one count of abduction with a firearm specification, and one count of aggravated robbery with a firearm specification. The six counts stemmed from two separate incidents, involving two separate victims. Except for the attempted murder charge and attendant specification, Mr. Stoutamire was convicted by a jury of all counts and specifications in May of 2007. The trial court sentenced him to an aggregate term of 34 years of incarceration.
{¶4} Mr. Stoutamire filed a timely appeal of his convictions and sentence. He raised five assignments of error, none relating to the issues at hand. This court affirmed his conviction in June of 2008. For a comprehensive recitation of the facts leading to Mr. Stoutamire‘s conviction and this court‘s reasons for upholding the verdict and sentence, the reader is referred to State v. Stoutamire, 11th Dist. Trumbull No. 2007-T-0089, 2008-Ohio-2916 (”Stoutamire I“). Mr. Stoutamire then sought post-conviction relief; he did not raise the issues subject of this appeal in his petition. The trial court granted the state‘s summary judgment motion regarding the petition in September of
{¶5} While his appeal of the first post-conviction petition was pending before this court, Mr. Stoutamire filed a second petition for post-conviction relief in March of 2009. Upon motion of the state, the trial court dismissed the second petition in June of 2009. Mr. Stoutamire appealed the trial court‘s dismissal of the second petition, which this court affirmed in State v. Stoutamire, 11th Dist. Trumbull No. 2009-T-0073, 2010-Ohio-1166 (”Stoutamire III“). None of the issues subject of this appeal was raised in the second petition, or the appeal from its dismissal.
{¶6} In January of 2011, Mr. Stoutamire filed a motion for resentencing with the trial court, arguing his sentence did not comply with the post-release control statute,
{¶7} Mr. Stoutamire appealed, and attempted to raise the issue of allied offenses and merger. However, neither of the issues subject to this appeal was raised. This court held any errors regarding allied offenses and merger were barred by res
{¶8} Presently, Mr. Stoutamire appeals the trial court‘s denial of his request for a resentencing hearing regarding community service and his motion for alternative payment of court costs. We note that Mr. Stoutamire‘s brief does not comply with the rules for a brief set forth in App.R. 16(A). It does not include a table of contents, a table of cases, a statement of assignments of error or references to the record. Under App.R. 12(A)(2), we are not required to address issues not argued separately as assignments of error, as required by App.R. 16(A). Kremer v. Cox, 114 Ohio App.3d 41, 60 (9th Dist.1996). These deficiencies alone permit us to dismiss the appeal.
{¶9} Further, we find the appealed judgment is not a final appealable order subject to review.
{¶10} According to
{¶11} “The term ‘final order’ is defined within
{¶12} Pursuant to
{¶13} Based on the foregoing, we conclude the judgment of the trial court denying Mr. Stoutamire‘s request for a resentencing hearing regarding potential community service and his motion for alternative payment of court costs is not a final appealable order under
{¶14} Assuming, arguendo, the trial court‘s decision was a final appealable order, Mr. Stoutamire‘s claims are still barred by res judicata. Under res judicata, a final judgment of conviction bars a defendant from raising any defense or any claimed lack of due process that was or could have been raised at the trial resulting in the judgment of conviction or on appeal from that judgment. State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
{¶15} The Supreme Court of Ohio has held that because a trial court must inform a defendant at sentencing that he or she may be subject to community service for failure to pay court costs, the time to appeal a trial court‘s failure to so advise runs from the date of sentencing. State v. Smith, 131 Ohio St.3d 297, 2012-Ohio-781, ¶10, citing State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, paragraph three of the syllabus. This holding applies to defendants, like Mr. Stoutamire, who were sentenced prior to the court‘s decision in Smith. State v. Haynie, 3rd Dist. Marion No. 9-13-18, 2013-Ohio-3777, ¶9. Mr. Stoutamire never raised the issue of the trial court‘s failure to inform him that he might be subject to community service for failure to pay court costs in any of his prior appeals.
{¶16} Regarding the motion for alternative payment of court costs, this court held in Pasqualone, supra, at 658, that when a defendant could have raised cost issues on direct appeal, but fails to do so, the defendant is barred by res judicata from raising the issue in a later appeal from the trial court‘s denial of his motion dealing with court costs. Again, Mr. Stoutamire never raised the issue of court costs in any prior appeal.
{¶17} We dismiss the appeal for lack of a final appealable order.
THOMAS R. WRIGHT, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.