State v. Beal , 2016 Ohio 3271 ( 2016 )

[Cite as State v. Beal, 2016-Ohio-3271.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-91
:
v. : Trial Court Case No. 2006-CR-1422
:
DIONDRAY M. BEAL : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 3rd day of June, 2016.
...........
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting
Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
DIONDRAY M. BEAL, Inmate No. 556-926, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
Defendant-Appellant-Pro Se
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WELBAUM, J.
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{¶ 1} Defendant-Appellant, Diondray Beal, appeals pro se from a trial court
judgment denying his motion to vacate a judgment entry filed on July 25, 2007. In
support of his appeal, Beal contends that the original judgment entry was not a final
appealable order because the trial court failed to state the method of payment of
restitution in the judgment entry. Beal further contends that the trial court could not
modify his firearm specification after the sentence imposed for the specification had
expired.
{¶ 2} We conclude that the original conviction was a final appealable order, and
that Beal’s arguments are barred by res judicata. Accordingly, the judgment of the trial
court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} This is the fourth appeal that Beal has filed in connection with his 2007
Aggravated Robbery conviction. The conviction arose in connection with an armed
robbery that occurred in November 2006. Following a jury trial, the trial court sentenced
Beal to nine years in prison on the Aggravated Robbery charge and three years on a
firearm specification, for a total of 12 years in prison. The court also ordered Beal to pay
$312.05 in restitution. We affirmed Beal’s conviction on direct appeal. See State v.
Beal, 2d Dist. Clark No. 07-CA-86, 2008-Ohio-4007, ¶ 57 (Beal I).
{¶ 4} Subsequently, Beal filed a motion with the trial court, seeking a revised
judgment entry because the judgment entry allegedly failed to comply with Crim.R. 32(C)
and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. After we
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issued an alternative writ directing the trial court to file a revised entry or show cause, the
trial court held a sentencing hearing and re-sentenced Beal to correct the fact that the
court had not originally stated the basis of Beal’s conviction, i.e., by jury trial, court trial,
or plea. State v. Beal, 2d Dist. Clark No. 2010-CA-103, 2011-Ohio-6699, ¶ 5 (Beal II).
{¶ 5} Beal then appealed, pro se, from the revised sentencing entry, raising four
assignments of error: (1) that the court imposed a restitution order without having
considered his ability to pay; (2) that the court erred in imposing a five-percent handling
fee in connection with the restitution obligation; (3) that the court erred in imposing court
costs without having notified him that failing to pay court costs could result in community
service; and (4) that his conviction for Aggravated Robbery was against the weight and
sufficiency of the evidence. Id. at ¶ 2.
{¶ 6} We concluded that the first, third, and fourth assignments of error were
barred by res judicata. Id. at ¶ 9. In this regard, we first noted that Beal’s judgment of
conviction was a final appealable order because it included the features outlined in State
v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. Id. at ¶ 10, citing Lester
at ¶ 12. In particular, the conviction was not required to state the manner of conviction
as a matter of substance, but only as a matter of form. Id. We then stated that:
In light of Lester, we conclude that Beal's original 2007 judgment
entry of conviction was a final, appealable order. Notably, that order
included a restitution obligation of $312.05 and required Beal to pay costs.
Therefore, if Beal wished to challenge restitution or court costs, he should
have done so in his prior appeal. Res judicata precludes him from doing
so now. Likewise, res judicata precludes him from now challenging the
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legal sufficiency or manifest weight of the State's evidence.
Beal II, 2d Dist. Clark No. 2010-CA-103, 2011-Ohio-6699, at ¶ 11.
{¶ 7} We did sustain Beal’s second assignment of error, concluding that the trial
court erred in imposing a five-percent handling fee for the restitution, since that was not
included in the original judgment. Id. at ¶ 12. We, therefore, modified the court’s
judgment by vacating the handling fee, and otherwise affirmed. Id. at ¶ 14.
{¶ 8} Subsequently, in January and February 2013, Beal filed pro se motions for
relief from judgment and to vacate a void judgment. After the trial court denied the
motions, Beal appealed again. See State v. Beal, 2d Dist. Clark No. 2013-CA-95, 2014-
Ohio-3834, ¶ 6 (Beal III). During this appeal, Beal raised two assignments of error: (1)
that the trial court had abused its discretion by resentencing him on the firearm
specification after he had already served the sentence; and (2) that the court had abused
its discretion by failing to instruct the jury as to all the essential elements of the offense.
Id. at ¶ 8 and 14.
{¶ 9} The first assignment of error was based on Beal’s allegation that the trial
court had initially said in open court that it would sentence him to two years on the firearm
specification, but then imposed a three-year sentence. Id. at ¶ 9. We rejected that
argument, stating:
Beal's premise that his sentence had been served when the trial
court modified its judgment entry is incorrect. Beal was convicted of
aggravated robbery, for which he was sentenced to nine years, and that
sentence had not been served when the trial court revised its judgment
entry. Beal's argument is based on his completion of the three-year firearm
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specification, without any acknowledgment of the nine-year sentence for
aggravated robbery. However, a firearm specification is a penalty
enhancement and is contingent upon an underlying felony conviction; it is
not a criminal offense in itself. State v. Ford, 128 Ohio St.3d 398, 2011–
Ohio–765, 945 N.E.2d 498, ¶ 16–17. Moreover, R.C. 2929.14(C) provides
that a firearm specification must be served “consecutively to and prior to
any prison term imposed for the underlying felony.” Because Beal has not
completed his sentence for aggravated robbery, his completion of that
portion of the sentence attributable to the penalty enhancement for the
firearm specification did not preclude the trial court from correcting its
judgment entry in his case.
Beal III, 2d Dist. Clark No. 2013-CA-95, 2014-Ohio-3834, at ¶ 10.
{¶ 10} In addition, we rejected this argument on the basis of res judicata, since the
original judgment entry had imposed a three-year sentence for the firearm specification,
and we had affirmed that judgment in Beal I. Id. at ¶ 11-12. We also rejected the
second assignment of error, by applying res judicata. Id. at ¶ 15.
{¶ 11} On March 12, 2015, Beal filed a motion to vacate the judgment for lack of a
final appealable order. After the trial court denied Beal’s motion, Beal once again filed a
notice of appeal.
II. Existence of an Appealable Order
{¶ 12} Beal’s First Assignment of Error states that:
Judgment Entry Failed to Meet the Required Crim.R. 32 Elements of
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Restitution by Failing to State the Method of Payment Thus the Defendant
Relies on State v. Anthony Thompson, Failure to Do So [sic] Non Final
Appealable Meaning the 2nd District Appeal Court Never Had Proper
Jurisdiction to Render on Case. The Defendant Ask[s] for the Court of
Appeals to Dismiss the First Appeal for Lack of Jurisdiction.
{¶ 13} Under this assignment of error, Beal contends that the trial court’s July 25,
2007 order, which required him to pay $312.05 in restitution, was not a final appealable
order because it failed to specify the “method” of payment. We have held that for a final
appealable order to exist, the trial court must decide the specific amount of restitution an
offender owes. State v. Plassenthal, 2d Dist. Montgomery No. 22464, 2008-Ohio-5465,
¶ 7-8. We adhered to this position in State v. Perkins, 2d Dist. Montgomery No. 25808,
2014-Ohio-1863, noting that “courts continue to take the view that entries contemplating
further action on restitution are not final appealable orders.” (Citations omitted.) Id. at
¶ 44.
{¶ 14} Courts have made the broad statement that a final appealable order does
not exist where a “judgment entry does not set forth either a specific amount of restitution
or the method of payment.” State v. Kuhn, 3d Dist. Defiance No. 4-05-23, 2006-Ohio-
1145, ¶ 8. However, these cases have involved situations where courts have failed to
set forth an ascertainable amount or how the amount ordered is to be allocated to multiple
victims. For example, in Kuhn, the trial court ordered the defendant to pay restitution to
the victim’s family for the decedent’s funeral and burial expenses, but did not indicate the
amount. There was also nothing in the record to aid the appellate court in ascertaining
the amount. Id.
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{¶ 15} In another example, the court of appeals noted that it had previously
dismissed the defendant’s appeal for lack of a final appealable order. This was based
on the trial court’s failure to order a specific restitution amount. State v. Lange, 3d Dist.
Mercer No. 10-06-28, 2007-Ohio-2280,¶ 7-8 and fn.1. However, the court also observed
that the case was now properly before it because the trial court had filed a nunc pro tunc
order requiring the defendant to pay $100 in restitution. Id. See also State v. Baker,
12th Dist. Butler No. CA2007-06-152, 2008-Ohio-4426, ¶ 43 (noting there was originally
no final appealable order where the trial court entry ordered defendant “to pay restitution
in an amount ‘to be determined * * *.’ ”); State v. Riggs, 5th Dist. Licking No. 2009-CA-
00041, 2009-Ohio-6821, ¶ 30 (holding there was no final appealable order because court
only ordered that defendant would pay restitution, rather than any particular amount); and
State v. Hartley, 3d Dist. Union No. 14-09-42, 2010-Ohio-2018, ¶ 5 (dismissing the appeal
because even though the trial court had ordered restitution of a specific amount, multiple
victims were involved, and the court’s entry did not describe how payments would be
allocated among victims. As a result, the entry left issues unresolved).
{¶ 16} Unlike these cases, the judgment entries in the case before us ordered a
specific restitution amount to be paid through the probation department. We also noted
in Beal I that the cashier who was robbed gave the robber “approximately three hundred
dollars in cash.” Beal I, 2d Dist. Clark No. 07-CA-86, 2008-Ohio-4007, at ¶ 1. Thus,
this case does not involve multiple victims. Accordingly, the restitution order did not
contemplate further action, and was a final appealable order.
{¶ 17} As an additional matter, since the order was final, any issues that Beal
wishes to address could have been resolved on direct appeal and are now barred by res
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judicata. “The doctrine bars re-litigation of matters that either were raised in a prior
appeal or could have been raised in a prior appeal.” (Citation omitted.) State v.
Anderson, 2d Dist. Montgomery No. 26525, 2016-Ohio-135, ¶ 44.
{¶ 18} Accordingly, the First Assignment of Error is overruled.
III. Jurisdiction over the Firearm Specification
{¶ 19} Beal’s Second Assignment of Error states that:
Court [sic] Lack Jurisdiction over the Defendant Because Firearm
Specification Should Be Dismissed for Not Being Properly Given under
Revised Code Within the Proper Limitations. Further the Ohio Supreme
Court Has Said a Specification and Underlying Offense are Separate
Offenses.
{¶ 20} Beal’s argument under this assignment of error is not particularly clear.
According to Beal, the State failed to object when the trial court sentenced him to two
years for the firearm specification. Allegedly, this occurred during the original sentencing
hearing. Beal also argues that he had served his firearm specification prior to the time
that it was modified. Somehow, Beal connects these points with a comment by the
Supreme Court of Ohio that “the Revised Code does not provide that either a trial court
or an appellate court may consider an offense and an attendant specification together as
a ‘bundle.’ ” State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863 N.E.2d 113, ¶ 16.
{¶ 21} Again, Beal’s arguments are barred by res judicata. Assuming for
purposes of argument that the trial court said during the initial sentencing hearing in 2007
that the court would impose a two-year sentence on the firearm specification, and then
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inserted a three-year sentence in its July 25, 2007 judgment entry, the time to raise this
issue would have been during Beal’s direct appeal.
{¶ 22} Furthermore, we previously rejected the same argument in Beal III, stating
that Beal could have raised sentencing issues about the firearm specification in both of
his prior appeals, but failed to do so. Beal III, 2d Dist. Clark No. 2013 CA 95, 2014-Ohio-
3834, at ¶ 10-12. We also observed that, under R. C. 2929.14(C), firearm specifications
must be served consecutive to the prison sentence for the underlying felony. Id. at ¶ 10.
Beal was originally sentenced in 2007, and the trial court resentenced him in October
2010. This was a little more than three years after the original sentence was imposed,
and, at that time, Beal would not have finished serving his nine-year prison sentence on
the underlying charge.
{¶ 23} As a final matter, we see no relevance of the Evans decision to this case.
There was no evidence of any type of “bundling” of sentences with respect to the firearm
specification and the sentence for the Aggravated Robbery. Accordingly, the Second
Assignment of Error is overruled.
IV. Conclusion
{¶ 24} All of Beal’s assignments of error having been overruled, the judgment of
the trial court is affirmed.
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DONOVAN, P.J. and FROELICH, J., concur.
Copies mailed to:
Ryan A. Saunders
Diondray M. Beal
Hon. Richard J. O’Neill