State v. Allshouse ( 2016 )

[Cite as State v. Allshouse, 2016-Ohio-5210.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27901
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CLAYTON E. ALLSHOUSE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2012-05-1423
DECISION AND JOURNAL ENTRY
Dated: August 3, 2016
MOORE, Judge.
{¶1} Defendant-Appellant Clayton E. Allshouse appeals from the judgments of the
Summit County Court of Common Pleas. We affirm.
I.
{¶2} In 2012, Mr. Allshouse was indicted on one count of illegal manufacture of drugs
along with a forfeiture specification, one count of illegal assembly or possession of chemicals for
the manufacture of drugs along with a forfeiture specification, one count of aggravated
possession of drugs, and one count of illegal use or possession of drug paraphernalia.
Ultimately, Mr. Allshouse pleaded guilty to the first two counts of the indictment and
accompanying specifications and the remaining two counts were dismissed. At sentencing, the
trial court merged count 2 into count 1 and sentenced Mr. Allshouse to a mandatory term of 5
years in prison on the illegal manufacture of drugs charge. Mr. Allshouse did not appeal.
2
{¶3} In April 2014, Mr. Allshouse filed a motion to withdraw his plea, which was
subsequently denied. Mr. Allshouse did not appeal. In the fall of 2014, Mr. Allshouse filed a
motion for public payment of transcript and a motion for “void of sentence[,]” which is not in the
record, although his response to the State’s memorandum in opposition (which is also not in the
record), is in the record. The trial court re-characterized Mr. Allshouse’s motion for “void of
sentence” as a motion to withdraw his plea and denied it. The trial court also denied his motion
for public payment of transcript. Mr. Allshouse did not appeal the trial court’s rulings.
{¶4} In April 2015, Mr. Allshouse filed a motion for an order directing the police to
return unlawfully seized property or to pay him the cost of the destroyed property. The State
opposed the motion. Mr. Allshouse filed a motion in June 2015, seeking a ruling on his April
2015 motion. Also in June 2015, Mr. Allshouse filed a motion captioned: “Motion to Withdraw
Plea Pursuant to Crim.R. 32.1 or in the alternative; Vacate the Void Ab Initio Sentence and
Sentencing Journal Entry, and to Revise/Correct Sentencing Entry to Comply with Crim.R.
32(C)[.]” In that motion, Mr. Allshouse asserted that the State breached the plea agreement by
seizing his house and personal property, the prosecutor did not elect which allied offense to
pursue against Mr. Allshouse at sentencing, the sentencing entry was not signed by the trial
judge, the trial court failed to impose postrelease control at the sentencing hearing and it
therefore could not include it in the sentencing entry, and Mr. Allshouse received ineffective
assistance of counsel. The trial court construed both motions as motions to withdraw his plea
and denied both on the basis of res judicata.
{¶5} Mr. Allshouse has appealed, pro se, raising five assignments of error, which will
be addressed together.
3
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED BY
DENYING [MR. ALLSHOUSE’S] MOTION TO WITHDRAW GUILTY PLEA
AND BY FAILING TO CORRECT A MANIFEST INJUSTICE WHERE THE
PROSECUTOR BREACHED THE PLEA AGREEMENT AND THAT
BREACH WAS PLAIN ERROR THAT THE TRIAL COURT SHOULD HAVE
CORRECTED, THEREBY DENYING [MR. ALLSHOUSE] DUE PROCESS
OF LAW AS GUARANTEED TO HIM BY BOTH THE UNITED STATES
AND OHIO CONSTITUTION.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION AND IMPUGNED THE
INTEGRITY OF THE JUDICIAL PROCESS AND VIOLATED [MR.
ALLSHOUSE’S] DUE PROCESS UNDER THE UNITED STATES AND OHIO
CONSTITUTIONS BY DENYING HIS MOTION TO VACATE VOID
SENTENCE WHERE THE IMPOSED SENTENCE WAS UNAUTHORIZED
BY STATUTE OF ORC SECTION 2941.25[.]
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED BY
FAILING TO DETERMINE WHETHER THE JOURNAL ENTRY OF
SENTENCING IS VOID PURSUANT TO CRIM.R. 32(C) BECAUSE THE
TRIAL JUDGE DID NOT SIGN THE JOURNAL ENTRY.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ABUSED ITS DISCRETION AND/OR ERRED WHEN
IT FAILED TO ADDRESS [MR. ALLSHOUSE’S] CLAIM THAT THE 3-
YEAR IMPOSED POST-RELEASE CONTROL SANCTION SENTENCE IS
VOID WHERE THE TRIAL COURT DID NOT IMPOSE PRC SENTENCE
DURING SENTENCING BUT INSTEAD IMPOSED PRC BY WAY OF NUNC
PRO TUNC JOURNAL ENTRY[.]
ASSIGNMENT OF ERROR V
[MR. ALLSHOUSE] WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED UNDER THE SIXTH AMENDMENT WHERE
COUNSEL FAILED TO PROTECT [MR. ALLSHOUSE’S] RIGHT’S
RELATING TO EACH ISSUE RAISED IN THIS BRIEF[.]
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{¶6} In Mr. Allshouse’s five assignments of error, he largely reiterates the arguments
he made in the trial court in his “Motion to Withdraw Plea Pursuant to Crim.R. 32.1 or in the
alternative; Vacate the Void Ab Initio Sentence and Sentencing Journal Entry, and to
Revise/Correct Sentencing Entry to Comply with Crim.R. 32(C)[.]”
{¶7} “The doctrine of res judicata ‘bars the assertion of claims against a valid, final
judgment of conviction that have been raised or could have been raised on appeal.’” State v.
Boware, 9th Dist. Summit No. 27446, 2014-Ohio-5779, ¶ 6, quoting State v. Ketterer, 126 Ohio
St.3d 448, 2010-Ohio-3831, ¶ 59. “This Court has recognized that a successive motion to
withdraw a guilty plea filed pursuant to Crim.R. 32.1 is subject to the doctrine of res judicata.”
State v. Kimbro, 9th Dist. Lorain No. 13CA010506, 2014-Ohio-4869, ¶ 7, citing State v. Miller,
9th Dist. Lorain No. 03CA008259, 2003-Ohio-6580, ¶ 9. “Under the doctrine of res judicata, any
issue that was or should have been litigated in a prior action between the parties may not be
relitigated.” Kimbro at ¶ 7, quoting State v. Zhao, 9th Dist. Lorain No. 03CA008386, 2004-
Ohio-3245, ¶ 7, quoting State v. Meek, 9th Dist. Lorain No. 03CA008315, 2004-Ohio-1981, ¶ 9.
“An offender may not raise issues in a successive motion to withdraw a guilty plea that could
have been raised in the initial motion.” Kimbro at ¶ 7, citing Zhao at ¶ 7-8.
{¶8} The September 2012 judgment entry in this case was a final, appealable order
pursuant to Crim.R. 32(C). See State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, paragraph
one of the syllabus. Thus, the doctrine of res judicata is applicable to Mr. Allshouse’s case. See
Boware at ¶ 6.
{¶9} While it is true that the doctrine of res judicata does not preclude review of a void
sentence, see State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, paragraph three of the
syllabus, Mr. Allshouse has not demonstrated that any portion of his sentence is void. Mr.
5
Allshouse does not challenge the propriety of the postrelease control notification in the 2012
sentencing entry, which correctly states that he is subject to a mandatory period of 3 years of
postrelease control. See R.C. 2967.28(B)(2). Instead, he argues that he was never properly
informed of postrelease control at the sentencing hearing, and thus, his sentence is void.1
However, there is no transcript of the sentencing hearing in the record before us. “When
portions of the transcript which are necessary to resolve assignments of error are not included in
the record on appeal, the reviewing court has no choice but to presume the validity of the [trial]
court’s proceedings, and affirm.” (Citation omitted.) State v. Wheeler, 9th Dist. Medina No.
13CA0051-M, 2016-Ohio-245, ¶ 4; see also State v. Williamson, 8th Dist. Cuyahoga No. 99473,
2013-Ohio-3733, ¶ 16. Thus, under these circumstances, we are required to presume regularity.
Mr. Allshouse has not demonstrated his sentence was void.
{¶10} As noted above, Mr. Allshouse filed an initial motion to withdraw his plea in
2014. That motion was denied, and Mr. Allshouse did not appeal that ruling. Further, Mr.
Allshouse has not demonstrated that he was unable to raise the arguments he now raises in his
2014 motion. See Kimbro, 2014-Ohio-4869, at ¶ 8. In light of the foregoing, the trial court did
not err in denying Mr. Allshouse’s motions based upon the doctrine of res judicata. See id.
{¶11} Mr. Allshouse’s assignments of error are overruled.
III.
{¶12} The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
1
Mr. Allshouse references the issuance of a nunc pro tunc entry which he alleges
imposed postrelease control; however, no such entry appears in the record or on the docket.
6
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
CARR, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
CLAYTON E. ALLSHOUSE, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.