State v. WilliamsState v. Williams
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{¶ 1} Defendant-Appellant, Adam Williams, appeals from the trial court‘s entry revoking his community control sanctions and sentencing him to prison. Williams originally received community control sanctions as a result of pleading guilty to five counts of possessing cocaine and one count of trafficking cocaine. On appeal, Williams contends that the trial court erred in convicting him of multiple allied offenses of similar import. He claims that his offenses should have merged to form only two possession counts, or alternatively, one possession count and one trafficking count.
{¶ 2} We conclude that the allied offense argument raised by Williams is barred by the doctrine of res judicata. The argument was ripe for appeal after Williams had been convicted and sеntenced to community control sanctions. Instead of properly raising the argument in an appeal from his conviction and sentence, Williams raised the argument over a year later in an appeal from the trial court‘s entry revoking his community control. Under the doctrine of res judicata, Williams‘s argument is not subject to appellate review, because it could have been raised in an earlier appeal from his conviction. Accordingly, the judgment of the trial court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} On April 2, 2010, Williams was indicted by the Greenе County Grand Jury on five counts of possessing cocaine in violation of
{¶ 4} Williams was arrested, and he entered into a plea agreement in which he pled guilty to five counts of possessing cocaine and one count оf trafficking cocaine. In exchange, the State dismissed the five counts for possessing criminal tools. On October 19, 2010, the trial court sentenced Williams to five years community control sanctions with six months of inpatient drug treatment at Greene Leaf Therapeutic Community. During sentencing, the court advised Williams that if he violated the conditions of community control, he would have to serve 12 months in prison for each of his six offenses consecutively, which would amount to a total prison term of 72 months. Williams did not file an appeal from his conviсtion or sentence.
{¶ 5} On March 29, 2012, the Greene County Adult Probation Department filed a motion for capias on grounds that Williams had violated the conditions of community control. Williams waived his right to a probable cause hearing on the matter, but requested an evidentiаry hearing, which was held on May 10, 2012. At the evidentiary hearing, Williams admitted to
{¶ 6} Williams now appeals from the trial court‘s May 10, 2012 entry revoking his community control and sentencing him to 42 months in prison. He filed his notice of appeal on June 11, 2012.
II. Did the Trial Court Err in Convicting the Appellant of Multiple Allied Offenses of Similar Import?
{¶ 7} Williams‘s Sole Assignment of Error states as follows:
THE TRIAL COURT ERRED BY CONVICTING THE APPELLANT OF MULTIPLE ALLIED OFFENSES OF SIMILAR IMPORT.
{¶ 8} Under this assignment of error, Williams contends that his five counts of possessing cocaine and one count of trafficking cocaine were allied offenses of similar import and should have been merged. Specifically, he claims that the location and packaging of the drugs found in his motel room only support two separate possession offenses. He also claims that one of the possession оffenses must merge with the trafficking offense. As a result, Williams argues that he only should have been convicted of two counts of possession, or alternatively, one count of possession and one count of trafficking.
{¶ 9} In response, the State contends that Williams‘s alliеd offense argument is outside the scope of this appeal. Specifically, the State argues that the doctrine of res judicata prevents
{¶ 10} As a preliminary matter, we note that “allied offense claims are nonjurisdictional and may be barrеd through application of the principles of res judicata.” (Citations omitted.) State v. Segines, 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 7. In State v. Pound, 2d Dist. Montgomery Nos. 24789, 24980, 2012-Ohio-3392, we stated the following regarding the doctrine of res judicata.
“Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represеnted 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 the trial, which resulted in that judgment of cоnviction, or on an appeal from that judgment.” Id. at ¶ 8, quoting State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus.
{¶ 11} In other words, “any issue that could have been raised on direct appeal and was not is res judicata and not subject to review in subsequent proceedings.” (Citations omitted.) State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
{¶ 12} Ohio‘s Third, Fourth, Fifth, and Twelfth Appellate Districts havе specifically held that res judicata bars a defendant from presenting an allied offense argument in an appeal from an entry revoking community control as opposed to appealing from the original entry of
{¶ 13} While not in the context of a defendant appealing an entry revoking community control, we have also held that an allied offense claim must be raised in a direct appeal from a defendant‘s conviction. In Pound, 2d Dist. Montgomery Nos. 24789, 24980, 2012-Ohio-3392 we stated the following:
[W]hen an aрpellant does not raise the issue of merger in a timely direct appeal, the challenge is barred by the doctrine of res judicata. State v. Martin, Montgomery 2d Dist. No. 21697, 2007-Ohio-3585, ¶ 3. See also State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13 (“the time to challenge a conviction based on allied offenses is through a direct appeal—not a resentencing hearing“); and State v. Goldsmith, 8th Dist. Cuyahoga No. 95073, 2011-Ohio-840, ¶ 11 (“[b]ecause [appellant] failed to raise on direct appeal from his conviction the issue concerning whether the offenses challenged herein are allied offenses of similar import subject to merger, we find that the issue is barred by thе doctrine of res judicata“). Id. at ¶ 14.
{¶ 15} We note that this topic has created some confusion given that various districts, including ours, have also held that when a trial court imposes a sеntence of community control with a reserve prison sentence, an appeal of the prison sentence does not become ripe until after a defendant actually violates community control. In other words, the “disposition is only appealable if and when the court revokes community control and sentences the defendant to prison.” State v. Lucas, 2d Dist. Champaign No. 2006 CA 1, 2007-Ohio-188, ¶ 59, citing State v. Adams, 2d Dist. Champaign No. 2003 CA 15, 2004-Ohio-3784, ¶ 28-29; State v. Dunson, 2d Dist. Montgomery No. 20961, 2006-Ohio-775; see also State v. Poppe, 3d Dist. Auglaize No. 2-06-23, 2007-Ohio-688, ¶ 14 (“an appeal of a reserved sentence of imprisonment that is part of a sentence of community control is not ripe until an actual sentencing order imposes the prison term for community control violation“); State v. Reed, 3d Dist. Defiance No. 4-05-22, 2005-Ohio-5614, ¶ 11; State v. Sparks, 4th Dist. Washington No. 03CA21, 2003-Ohio-6300, ¶ 11-13.
{¶ 16} At first blush, the foregoing cases appear to conflict with the cases that require a defendant to present an allied offense claim in a direct appeal from his cоnviction as opposed to
{¶ 17} This matter is clarified in State v. Wilson, 1st Dist. Hamilton No. C -061000, 2007-Ohio-6339. In Wilson, the First District addressed the ripeness issue in the context of an allied offense claim, and it pointed out that “by raising an allied-offense argument, [the appellant] is challenging the сonvictions, not just the sentences.” Id. at ¶ 5. As a result, Wilson held that the allied offense issue, which ultimately affected the defendant‘s conviction, was ripe for review before the community control violation. Id.
{¶ 18} We further note that the Supreme Court of Ohio has recently declined to сertify a conflict on this issue. On April 22, 2013, the Twelfth District granted a motion to certify a conflict on grounds that its decision in Painter, 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, “is in conflict with several cases from different districts that have held that a defendant may argue issues regarding his original sentence after community control has bеen revoked, because the prison sentence is not technically imposed until the revocation of the community control.” Entry Granting Motion for Certification, 12th Dist. Clermont No. CA2012-04-031 (Apr. 22, 2013), p. 13, citing Poppe, 3d Dist. Auglaize No. 2-06-23, 2007-Ohio-688; State v. Ellis, 4th Dist. Washington No. 02CA48, 2003-Ohio-2243.1 In Painter,
{¶ 19} As a result of the foregoing, we will follow the precedent set by the Third, Fourth, Fifth, and Twelfth Districts, and hold that res judicata bars a defendant from presenting an allied offense argument in an appeal from an entry revoking community control, as the argument is ripe for appeal after conviction, and should be presented in a direct appeal from the original entry of conviction and sentence.
{¶ 20} In this case, Williams‘s allied offense argument should have been raised in an appeal from his October 19, 2010 conviction and sentence. Instead, he raised his argumеnt in an appeal from the May 10, 2012 entry revoking his community control. As a result, we find that the doctrine of res judicata bars Williams from raising the allied offense argument in this appeal.
{¶ 21} For the foregoing reasons, Williams‘s sole assignment of error is overruled.
III. Conclusion
{¶ 22} Having overruled Williams‘s sole assignment of error, the judgment of the trial court is affirmed.
HALL, J., concurs.
{¶ 23} I disagree. In my view, a challenge to a reserved prison term (one, in fact, which was modified downward and resulted in a new judgment entry) is unripe and not justiciable until the judgment is entered revoking community control. The majority‘s оpinion will result in countless appeals from the grant of community control sanctions which may ultimately be unnecessary due to successful completion of community control or administrative termination thereof.
{¶ 24} Although Williams did not appeal his sentence when hе was informed of a potential 72-month sentence, the new judgment entry which imposed the 42-month sentence was imposed for the very first time upon his revocation of community control. Thus, in my view, Williams has a right to a direct appeal of the imposition of a prison term. Prior to the 42-month sentence, the judgment entry of community control was only a “notice” of a potential sentence as referenced in
{¶ 25} Lastly, in the alternative, I would grant a delayed appeal pursuant to
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