State v. Bowshier , 2016 Ohio 1416 ( 2016 )

[Cite as State v. Bowshier, 2016-Ohio-1416.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-53
:
v. : Trial Court Case No. 2005-CR-253
:
TAYLOR C. BOWSHIER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 1st day of April, 2016.
...........
MEGAN FARLEY, Atty. Reg. No. 0088515, Clark County Assistant Prosecuting Attorney,
50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOHN S. PINARD, Atty. Reg. No. 0085567, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
Attorney for Defendant-Appellant
.............
WELBAUM, J.
-2-
{¶ 1} In this case, Defendant-Appellant, Taylor Bowshier, appeals from a trial court
judgment overruling his motion for resentencing. Bowshier’s appellate counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), stating that he could find no meritorious issues to pursue on appeal. Counsel
raised one potential assignment of error: that the trial judge was required to state certain
reasons and findings on the record prior to imposing consecutive sentences.
{¶ 2} In an entry filed on December 22, 2015, we advised Bowshier that his
attorney had filed an Anders brief. We granted Bowshier 60 days from that date to file a
pro se brief, but no pro se brief was filed.
{¶ 3} We also filed an order on February 12, 2016, requiring the record to be
supplemented with the presentence investigation report (“PSI”) as well as any victim
impact statement or other documents considered by the trial court. We were
subsequently informed by the trial court that there was no PSI. We, therefore, filed an
entry on February 22, 2016, indicating that the matter would proceed accordingly.
{¶ 4} We have independently reviewed the record, including the transcript of the
sentencing hearing, pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d
300 (1988), and we agree with appellate counsel that there are no potentially meritorious
issues for review. Accordingly, the judgment of the trial court will be affirmed.
I. Consecutive Sentences
{¶ 5} In April 2005, Taylor Bowshier was indicted on seven counts of trafficking in
drugs, with specifications, including firearm specifications, forfeiture specifications, and
-3-
specifications that certain of the offenses were committed within 100 feet of a juvenile or
within 1,000 feet of a school. Bowshier was also indicted on five counts of possession
of criminal tools, two counts of having a weapon under disability, two counts of unlawful
transactions in weapons, and two counts of receiving stolen property.
{¶ 6} On September 14, 2005, Bowshier pled guilty to Counts One, Five, Seven,
10, 12, and 14, which involved two first-degree felonies, one second-degree felony, one
third-degree felony, one fourth-degree felony, and one fifth degree felony. In exchange
for the plea, the State agreed to dismiss the remaining counts. The parties agreed on a
fifteen-year prison term, which included imposition of consecutive sentences on some
counts. Bowshier was also sentenced to mandatory minimum fines totaling $32,500,
and forfeited his interest in a residence and a 1999 Chevrolet Suburban. The judgment
entry of conviction was filed on September 21, 2005.
{¶ 7} Bowshier did not appeal from his convictions and sentences. More than
eight years later, in October 2013, Bowshier filed a motion to correct an “illegal sentence.”
Bowshier was represented by counsel in this filing. The motion was based on the trial
court’s alleged failure to follow statutory mandates for imposing consecutive sentences.
After the State filed a reply, the trial court overruled the motion, concluding that the law
cited by Bowshier was inapplicable because Bowshier had agreed to his sentence. The
entry overruling the motion was filed on December 12, 2013.
{¶ 8} Bowshier did not appeal from the December 2013 judgment. Subsequently,
in February 2014, Bowshier filed a pro se motion pointing out a clerical error in the trial
court’s entry. The court agreed, and on June 13, 2014, filed an entry vacating the part
of the entry that contained incorrect language. This entry further indicated that the rest
-4-
of the initial entry, which had overruled the motion to correct an illegal sentence, remained
in full force and effect. Bowshier did not file an appeal from the June 2014 judgment,
either.
{¶ 9} On March 9, 2015, Bowshier filed a pro se motion for resentencing. This
motion again raised the argument that the trial court had failed to follow statutory
mandates for imposing consecutive sentences. After the trial court overruled the motion,
Bowshier filed a notice of appeal on May 22, 2015. As was noted, we appointed counsel
for purposes of the appeal, and counsel filed an Anders brief, concluding that no
potentially meritorious issues existed for review. As was also noted, appellate counsel
raised the issue of consecutive sentences. However, counsel indicated this issue lacked
arguable merit because agreed sentences are not subject to appellate review.
{¶ 10} We agree that this issue lacks any arguable merit. In State v. Weese, 2d
Dist. Clark No. 2013-CA-61, 2014-Ohio-3267, we held that:
Ordinarily, R.C. 2929.14(C)(4) requires certain findings to be made
before consecutive sentences can be imposed. However, the Ohio
Supreme Court explicitly has held that “[a] sentence imposed upon a
defendant is not subject to review under [R.C. 2953.08(D) ] if the sentence
is authorized by law, has been recommended jointly by the defendant and
the prosecution in the case, and is imposed by a sentencing judge.” State
v. Porterfield, 106 Ohio St.3d 5, 2005–Ohio–3095, 829 N.E.2d 690, ¶ 25.
In addition, the court stated that “[t]he General Assembly intended a jointly
agreed-upon sentence to be protected from review precisely because the
parties agreed that the sentence is appropriate. Once a defendant
-5-
stipulates that a particular sentence is justified, the sentencing judge no
longer needs to independently justify the sentence.” Id. Therefore, not
only were findings unnecessary, but the agreed sentence is not subject to
appellate review. Any argument to the contrary lacks arguable merit and
would be frivolous.
Weese at ¶ 5.
{¶ 11} We note that the Eleventh District has certified a conflict to the Supreme
Court of Ohio, based on its disagreement with our decision in Weese and the decision of
the Fourth District Court of Appeals in State v. Pulliam, 4th Dist. Scioto No. 14CA3609,
2015-Ohio-759. See State v. Sergent, 2015-Ohio-2603, 38 N.E.3d 461, ¶ 32, (11th
Dist.). On September 30, 2015, the Supreme Court of Ohio determined that a conflict
exists. See State v. Sergent, 143 Ohio St.3d 1476, 2015-Ohio-3958, 38 N.E.3d 898,
which asks the parties to brief the following issue:
“In the context of a jointly-recommended sentence, is the trial court required
to make consecutive-sentence findings under R.C. 2929.14(C) in order for
its sentence to be authorized by law and thus not appealable?”
Id.{¶ 12} We have continued to follow Weese, and will do so until the Supreme Court
of Ohio indicates otherwise. See State v. Lambert, 2d Dist. Clark No. 2015-CA-5, 2015-
Ohio-5168, ¶ 27. Therefore, Bowshier’s argument is still deemed frivolous in our district.
{¶ 13} We do note that Sergent involves different circumstances than the case
before us, as the defendant in that case raised the consecutive sentences argument
during the course of his direct appeal. Sergent at ¶ 7-11. In contrast, the argument that
-6-
Bowshier makes about consecutive sentences would be barred, in any event, on res
judicata grounds.
{¶ 14} In a similar situation, we considered the defendant’s motion for resentencing
as a petition for post-conviction relief that was both untimely and barred by res judicata.
See State v. Singleton, 2d Dist. Montgomery No. 26763, 2016-Ohio-611, ¶ 11-21.
Singleton contains a detailed discussion of the pertinent principles and why such claims
are barred. In the case before us, Bowshier never filed a direct appeal of his convictions
and sentences, which occurred more than ten years ago. Bowshier also never appealed
the trial court’s decision in 2013, which rejected his argument about consecutive
sentences.
{¶ 15} Accordingly, “ ‘res judicata serves to bar any claim that was or could have
been raised in the trial court or on direct appeal. To overcome the res judicata bar, the
petitioner must produce new evidence that renders the judgment void or voidable, and
show that he could not have appealed the claim based upon information contained in the
original record.’ ” Singleton at ¶ 34, quoting State v. Aldridge, 120 Ohio App.3d 122,151,
697 N.E.2d 228 (2d Dist.1997).
{¶ 16} No such evidence was presented, and even if it had been, Bowshier failed
to appeal from his convictions (where he could have raised the issue) and from the prior
denial of his motion for resentencing. Again, in this situation, his arguments would be
precluded by res judicata. In this regard, State v. Chapin, 10th Dist. Franklin No. 14AP-
1003, 2015-Ohio-3013, found a defendant’s arguments barred, and also rejected his
contention that the failure to make required findings under R.C. 2929.14(C)(4) rendered
the sentence void. The court of appeals noted that the Supreme Court of Ohio “ ‘has
-7-
declined to find sentences void based on the court's failure to comply with certain
sentencing statutes, including the consecutive sentencing statute.’ ” Id. at ¶ 9, quoting
State v. Sanders, 9th Dist. Summit No. 27189, 2014-Ohio-5115, ¶ 5, which in turn cites
State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8. The court
further observed that “challenges to a sentencing court's judgment as to whether
sentences must be served concurrently or consecutively must be presented in a timely
direct appeal * * *. Thus, because the trial court's ‘alleged failure to comply with the
consecutive sentencing statute does not render [the] sentence void, res judicata applies.’
” Id., quoting Sanders at ¶ 6.
II. Conclusion
{¶ 17} Because the record fails to reveal any non-frivolous issues regarding
whether Bowshier’s convictions and sentences were appropriate, the judgment of the trial
court is affirmed.
.............
FROELICH, J. and HALL, J., concur.
Copies mailed to:
Megan Farley
John S. Pinard
-8-
Taylor C. Bowshier
Hon. Douglas M. Rastatter