State v. Ford ( 2022 )

[Cite as State v. Ford, 2022-Ohio-161.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-21-10
v.
GREGORY W. FORD, II, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 2015 CR 247
Judgment Affirmed
Date of Decision: January 24, 2022
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
Case No 14-21-10
MILLER, J.
{¶1} Defendant-appellant, Gregory W. Ford, II, appeals the April 1, 2021
judgment of sentence the Union County Court of Common Pleas. For the reasons
that follow, we affirm.
{¶2} We have previously recited much of the factual and procedural
background of this case, and we will not duplicate those efforts here. State v. Ford,
3d Dist. Union No. 14-19-31, 2020-Ohio-3770, ¶ 1-9. Relevant to this appeal, on
December 29, 2015, the Union County Grand Jury indicted Ford on four counts:
Count One of trespass in a habitation in violation of R.C. 2911.12(B), a fourth-
degree felony; Count Two of assault in violation of R.C. 2903.13(A), a first-degree
misdemeanor; Count Three of resisting arrest in violation of R.C. 2921.33(A), a
second-degree misdemeanor; and Count Four of aggravated menacing in violation
of R.C. 2903.21(A), a first-degree misdemeanor. On July 18, 2016, Ford withdrew
his pleas of not guilty and pursuant to a negotiated-plea agreement, entered pleas of
guilty to Counts One, Two, and Three of the indictment. The trial court accepted
Ford’s pleas and found him guilty. In exchange, the State recommended the trial
court dismiss Count Four and recommended a jointly-agreed sentence of
community control sanctions.
{¶3} On November 7, 2016, the trial court imposed five years of community
control sanctions with conditions. The sentencing entry specified that if Ford failed
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to complete the term of community control, the trial court may sentence him to 18
months in prison on Count One, 180 days in jail on Count Two, and 90 days in jail
on Count Three. The judgment entry stated that the jail sentences for Counts Two
and Three were to run concurrent to the sentence in Count One. On March 5, 2019,
Ford admitted to a community-control violation. However, at the March 12, 2019
sentencing hearing, the trial court continued his community control and did not
impose the previously suspended terms of incarceration.
{¶4} On September 20, 2019, the State filed a second community-control
violation against Ford alleging that he was convicted of felonious assault in Madison
County case number 2018-CR-0200 on August 29, 2019. On October 31, 2019,
Ford entered an admission to violating the terms of his community control. The
trial court then sentenced Ford to serve the previously reserved term of 18 months
in prison for the three offenses. Additionally, the trial court ordered this sentence
to be served consecutively to the sentence imposed in the Madison County case.
{¶5} On November 2, 2019, Ford filed a notice of appeal with this court. In
his direct appeal, Ford raised a single assignment of error complaining that the trial
court erred by ordering his sentence to run consecutive to the sentence imposed in
the Madison County case. Ford, 2020-Ohio-3770, at ¶ 10. Ford raised two
arguments in support of his assignment of error. Id. First, Ford argued the trial
court failed to notify him at the time of his original sentencing on November 7, 2016
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or the March 12, 2019 sentencing hearing on his community control violation of the
possible consequences for his commission of a new felony, and the possibility that
the trial court could order his sentence to be served consecutively to his sentence for
a new felony. Id. at ¶ 11. Second, Ford argued that the trial court failed to make
the required consecutive-sentencing findings under R.C. 2929.14(C)(4) on the
record. Id.
{¶6} With respect to Ford’s argument that the trial court failed to notify him
of the possible consequences he faced for the commission of a new felony and the
possibility that the sentence could be served consecutively to his sentence in another
case, we noted that Ford failed to include transcripts from the 2016 or 2019
sentencing hearings. Id. at ¶ 15. Thus, this court was unable to review the relevant
portion of the record to address the merits of his argument. Id. Therefore, we
presumed regularity in the proceedings and the validity of the trial court’s
notifications and found this portion of his argument to be without merit. Id. at ¶ 16.
{¶7} However, with regard to Ford’s argument that the trial court failed to
make the consecutive-sentencing findings under R.C. 2929.14(C)(4) on the record,
we found that the trial court did not make the required consecutive-sentencing
findings at the October 31, 2019 sentencing hearing. Id. at ¶ 21. Accordingly, we
affirmed Ford’s conviction but reversed his sentence and remanded the matter for
resentencing. Id. at ¶ 22.
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{¶8} On April 1, 2021, the trial court held a resentencing hearing where it
again sentenced Ford to 18 months in prison on Count One, 180 days in jail on
Count Two to be served concurrently to the sentence for Count One, and 90 days in
jail on Count Three to be served to concurrent to the sentences for Counts One and
Two. Further, the trial court ordered the sentences for Counts One, Two, and Three
be served consecutively to the sentence imposed in the Madison County case. The
trial court made the findings necessary to support consecutive sentences. The trial
court filed its judgment entry of sentence that same day.
{¶9} On April 30, 2021, Ford filed his notice of appeal. He raises one
assignment of error for our review.
Assignment of Error
The trial court erred when, on remand, it again ordered
Appellant’s sentence to run consecutive to the sentence he
received in Madison County; an offense known to the court at the
time of the initial community control violation hearing, without
giving Appellant proper notice that any future violation that
occurred as a result of the commission of another crime could
result in the suspended sentence being served consecutive to the
new sentence.
{¶10} In his assignment of error, Ford argues the trial court erred when, on
remand, it again ordered his sentence to run consecutively to the sentence imposed
in the Madison County case. Specifically, Ford argues that his sentence is contrary
to law because at his November 7, 2016 sentencing hearing, the trial court failed to
inform him that, should he violate the terms of his community control and be
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sentenced to prison as a result of that violation, the trial court could choose to
reimpose the prison sentence and order that sentence to be served consecutively to
any new sentence. Ford contends that because the trial court never reserved the
right to impose the sentence consecutive to a new conviction, it was precluded from
imposing the sentence consecutive to the sentence in the Madison County case.
Thus, Ford argues that the trial court erred by ordering his sentence to run
consecutively to the sentence imposed in the Madison County case.
{¶11} However, we do not reach the merits of Ford’s assignment of error
because his argument is barred by the doctrine of res judicata. “‘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 * * * on an appeal from that
judgment.’” State v. Stewart, 3d Dist. Seneca No. 13-21-05, 2021-Ohio-2294, ¶ 15,
quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
{¶12} Here, although Ford frames his argument as a challenge to the
sentence imposed at the April 1, 2021 resentencing hearing, his assignment of error
actually challenges the validity of the notifications he received at his November 7,
2016 sentencing hearing. Indeed, Ford raised the same challenge in his previous
direct appeal. Ford, 2020-Ohio-3770, at ¶ 10-11. However, in his previous appeal,
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Ford only provided this court with the transcript of the October 31, 2019 sentencing
hearing and failed to provide a transcript of the November 7, 2016 or March 12,
2019 sentencing hearings despite arguing that the trial court failed to make the
proper notifications at either hearing. Id. at ¶ 15. Due to Ford’s failure to file a
complete transcript of the relevant proceedings, a statement of the evidence pursuant
to App.R. 9(C), or an agreed statement pursuant to App.R. 9(D), this court indulged
the presumption of the regularity of the proceedings and the validity of the judgment
in the trial court. Id. In pursuing the identical issue in the present appeal, Ford is
asking this court to ignore the doctrine of res judicata and change our prior ruling,
which we are not inclined to do.
{¶13} Res judicata bars a defendant “who has had his day in court from
seeking a second on that same issue.” State v. Saxon, 109 Ohio St.3d 176, 2006-
Ohio-1245, ¶ 18. “In so doing, res judicata promotes the principals of finality and
judicial economy by preventing endless relitigation of an issue on which a defendant
has already received a full and fair opportunity to be heard.” Id. Thus, although
Ford has now included transcripts of the November 7, 2016 and the March 12, 2019
sentencing hearings as part of the record for his present appeal, he already had a full
and fair opportunity to be heard on the issue in his previous direct appeal. Ford at
¶ 15. See generally State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973(applying res judicata in the context of an appeal following a remand for
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resentencing); Saxon at ¶ 19. Ford’s failure to provide the transcripts of the prior
hearings in his previous direct appeal does not entitle him to a second bite at the
apple on his subsequent appeal. Had Ford provided the transcripts in his original
appeal, this court could have analyzed his assignment of error differently and, if any
error was committed by the trial court during the original sentencing in 2016 or the
community control violation hearing in 2019, such error could have been corrected
as part of the previously ordered remand. Therefore, Ford is not able to now
overcome the bar of res judicata to allow us to reach the merits of his argument.
{¶14} Accordingly, Ford’s assignment of error is overruled.
{¶15} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the Union County Court
of Common Pleas.
Judgment Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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