State v. Sankey ( 2019 )

[Cite as State v. Sankey, 2019-Ohio-2870.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2019-A-0037
- vs - :
ROBERTO SANKEY a.k.a. ROBBIE :
ROYCE SANKEY,
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR
00195.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelly M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, Ohio 44047-1092 (For Plaintiff-
Appellee).
Roberto Sankey, pro se, PID: A693-244, Trumbull Correctional Camp, 5701 Burnett
Road, P.O. Box 640, Leavittsburg, Ohio 44430 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Roberto Sankey, appeals the trial court's judgment overruling his
postconviction motion. We affirm.
{¶2} Sankey raises one assigned error:
{¶3} “Trial counsel for defense was ineffective in violation of Sixth Amendment
of U.S. Constitution when trial counsel did not challenge duplicitous indictment.”
{¶4} In November 2016, Sankey pleaded guilty to telecommunications fraud,
passing bad checks, grand theft with a specification, and attempted grand theft. He was
represented by counsel and sentenced to five years in prison. Sankey did not file a direct
appeal.
{¶5} In February 2019, Sankey moved the court to “remedy the duplicitous
indictment” arguing that the state impermissibly consolidated the charges to reach higher
level offenses and that trial counsel was ineffective for failing to challenge the indictment.
His argument is based solely on the indictments as well as attached exhibit A.
{¶6} The trial court denied his motion as barred via res judicata. We agree.
{¶7} “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 * * *, which resulted
in that judgment of conviction, or on an appeal from that judgment.” (Citations
omitted.) State v. Szefcyk, 77 Ohio St. 3d 93, 1996-Ohio-337, 671 N.E.2d 233 (1996),
syllabus.
{¶8} “Normally, a constitutional claim, such as ineffective assistance of trial
counsel, is based on evidence in the original trial record and is barred on postconviction.
* * * It follows, therefore, that the court may apply res judicata if the petition for
postconviction relief does not include any materials out of the original record to support
the claim for relief. * * *.” State v. Combs, 100 Ohio App. 3d 90, 97, 652 N.E.2d 205 (1st
Dist.1994), citing State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104, paragraph seven of
the syllabus (1967) and State v. Cole, 2 Ohio St. 3d 112, 114, 443 N.E.2d 169 (1982).
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{¶9} Here, Sankey pleaded guilty and did not file a direct appeal. He does not
argue the raised issues render his conviction void. Nevertheless, the argument he now
raises is based on matters of record at the time of conviction, i.e., the indictment and an
attached exhibit. And because Sankey could have raised this argument on direct appeal,
res judicata bars him from raising it now. Id.
{¶10} Moreover, Sankey raised a similar argument in a prior postconviction
motion, which the trial court overruled, and we affirmed. State v. Sankey, 11th Dist.
Ashtabula No. 2018-A-0087, 2019-Ohio-1947, ¶ 10.
{¶11} Accordingly, Sankey's sole assignment of error is overruled, and the trial
court’s decision is affirmed.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.
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