State v. YoungState v. Young
Decided: March 16, 2012
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Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.
James E.L. Watson, for appellant.
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HANDWORK, J.
{¶ 1} Appellant, Dionta Jesse Young, appeals from his sentence entered by the Erie County Court of Common Pleas, in the above-captioned case. For the reasons that follow, we affirm the judgment of the trial court.
{¶ 3} On November 15, 2002, the Erie County Grand Jury indicted appellant in case No. 2002-CR-531 for possession of crack cocaine, tampering with evidence, and assault.
{¶ 4} The cases were joined for the purpose of a jury trial, which commenced on May 8, 2003. Appellant was found guilty of all offenses except for the offense of assault.
{¶ 5} The trial court imposed a sentence that included a total of 22 years imprisonment, as evidenced by judgment entries journalized on June 11, 2003, in case No. 2002-CR-429, and on June 12, 2003, in case No. 2002-CR-531.
{¶ 6} On June 11, 2003, appellant filed a notice of appeal from the trial court‘s judgment entries. Upon review of the appeal, this court found that the trial court had
{¶ 7} On February 24, 2005, the matter came before the trial court for resentencing, at which time the trial court imposed a sentence for a revised total of 19 years imprisonment.
{¶ 8} On March 2, 2005, appellant filed a notice of appeal from the resentencing. This court affirmed the judgment of the trial court. See State v. Young, 6th Dist. No. E-05-013, E-06-014, 2006-Ohio-728.
{¶ 9} On April 4, 2008, appellant filed, pro se, a petition to vacate or set aside sentence. The trial court denied the petition, as evidenced by a judgment entry journalized on April 15, 2008.
{¶ 10} On May 15, 2008, appellant filed a notice of appeal from the trial court‘s April 15, 2008 judgment entry. This court affirmed the trial court‘s decision, in State v. Young, 6th Dist. No. E-08-041, 2009-Ohio-1118.
{¶ 11} On March 8, 2011, the case again came before the trial court for purposes of resentencing. This time, the matter of resentencing arose pursuant to a request for proper notification of postrelease control that was filed by the Ohio Department of Rehabilitation and Correction, and pursuant to a motion to resentence that was filed by appellant, in which appellant raised, for the first time, the issue of merger of allied offenses.
{¶ 13} On April 6, 2011, appellant appealed from the trial court‘s March 9, 2011 judgment entry, raising the following sole assignment of error:
The trial court erred in imposing multiple sentences for allied offenses and when the trial court failed to inquire as to the facts of the case and the defendant‘s conduct to determine if the convictions were for allied offenses.
{¶ 14} In examining appellant‘s assignment of error, we are mindful that in a criminal case, res judicata bars the further litigation of issues that were or could have been raised previously in a direct appeal. State v. Leek, 8th Dist. No. 74338, 2000 WL 868501 (June 21, 2000), citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. There is no dispute that appellant, in this case, could have raised the issue of merger of allied offenses on direct appeal but did not do so.
{¶ 15} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E. 2d 332, the Supreme Court of Ohio made clear that “when a judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence
{¶ 16} The Eighth District Court of Appeals, in State v. Padgett, 8th Dist. No. 95065, 2011-Ohio-1927, held, upon consideration of the defendant‘s appeal from resentencing to impose postrelease control, that in light of the decision in Fischer, the issue of merger of allied offenses was barred by res judicata, because the issue did not arise from the resentencing hearing. Id. at ¶ 8; see also State v. Gates, 6th Dist. No. L-10-1163, 2011-Ohio-3492, (citing Padgett, supra, with approval, this court declined to address the merits of the defendant-appellant‘s assignments of error, on the grounds that they stemmed from actions by the trial court at resentencing that were unrelated to the imposition of postrelease control.)
{¶ 17} Quoting State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, the court in Padgett concluded that “the time to challenge a conviction based on allied offenses is through a direct appeal – not at a resentencing hearing.” Id.
{¶ 18} We reach the same conclusion here, and find that the proper avenue for appellant‘s merger challenge would have been in his direct appeal from his original, June 2003, sentencing. As such, appellant‘s assignment of error is found to be outside the
{¶ 19} For all of the foregoing reasons, the judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Peter M. Handwork, J.
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JUDGE
Mark L. Pietrykowski, J.
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Thomas J. Osowik, J. JUDGE
CONCUR.
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JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.