State v. Norris ( 2014 )

[Cite as State v. Norris, 2014-Ohio-2199.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2013-0052
:
DERRICK C. NORRIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2003-288A
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 19, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX DERRICK C. NORRIS pro se
MUSKINGUM CO. PROSECUTOR #478-560
ROBERT L. SMITH Marion Correctional Institution
27 North Fifth St. P.O. Box 57
Zanesville, OH 43701 Marion, OH 43301
Muskingum County, Case No. CT2013-0052 2
Delaney, J.
{¶1} Appellant Derrick C. Norris appeals from the September 26, 2013 Journal
Entry of the Muskingum County Court of Common Pleas overruling his “Motion for Allied
Offense Determination.” Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal, nor is a restatement of the entire lengthy
appellate history. The following statement, therefore, references only those portions of
the case history relevant to the instant appeal.
{¶3} On September 17, 2004, appellant entered negotiated pleas of guilty to
one count of murder with a firearm specification [R.C. 2903.02(A)(1)]; one count of
aggravated robbery [R.C. 2911.01(A)(1)]; and one count of tampering with evidence
[R.C. 2921.12(A)(1)]. He was sentenced to an aggregate prison term of 33 years to life.
In exchange for appellee’s recommendation of a 33-year-to-life sentence, appellant
agreed to waive his right to appeal maximum and/or consecutive sentences.
{¶4} Appellant did not file a direct appeal of his conviction. Appellant did file a
number of petitions for post-conviction relief and appeals thereof, all of which were
unsuccessful.
{¶5} On March 5, 2010, appellant filed a motion for sentencing, arguing the trial
court failed to properly advise him of post release control. The trial court denied
appellant’s motion but we vacated that decision, finding appellant was entitled to a de
novo resentencing hearing on the authority of State v. Ketterer, 126 Ohio St. 3d 448,
Muskingum County, Case No. CT2013-0052 3
2010-Ohio-3831, 932 N.E.2d 9. State v. Norris, 5th Dist. Muskingum No. CT10-0020,
2010-Ohio-6076, ¶ 17.
{¶6} Appellant was thereupon resentenced with the requisite post release
control advisements, resulting in another flurry of petitions and appeals.
{¶7} Relevant to the instant appeal, on September 9, 2013, appellant filed a
“Motion for Allied Offense Determination” which was overruled by the trial court on
October 17, 2013. It is from this decision appellant now appeals.
{¶8} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶9} “I. WHETHER THE TRIAL COURT’S RECHARACTERIZATION OF
APPELLANT’S MOTION FOR ‘ALLIED OFFENSE DETERMINATION’ O.R.C. 2941.25;
AS A POSTCONVICTION RELIEF PETITION (FOR THE PURPOSE OF DENYING
RELIEF) OFFENDS DUE PROCESS AND FUNDAMENTAL FAIRNESS WHERE THE
RECORD CLEARLY REVEALS A PRIMA FACIE CASE FOR THE REQUESTED
RELIEF.”
{¶10} “II. WHETHER THE DUTY TO ‘INQUIRE’ AND ‘DETERMINE’ WHETHER
MULTIPLE OFFENSES CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT IS
JURISDICTIONAL AND THEREFORE PLACES A MANDATORY DUTY ON THE
TRIAL COURT, OR WHETHER, O.R.C. 2941.25 IS ‘DISCRETIONARY,’ AND HENCE,
MAY BE WAIVED BY THE COURT OR THE DEFENDANT AND SUBJECT TO THE
APPLICATION OF THE DOCTRINE OF RES JUDICATA.”
Muskingum County, Case No. CT2013-0052 4
ANALYSIS
I., II.
{¶11} Appellant’s two assignments of error are related and will be decided
together. Although appellant’s argument is scattered and, as appellee points out, does
not follow the assignments of error, appellant essentially argues the trial court must
determine whether his convictions were allied offenses of similar import pursuant to
R.C. 2941.25. We disagree.
{¶12} Appellant’s motion is barred by res judicata. We have found the issue of
merger of allied offenses to be barred by res judicata on a defendant's appeal from
resentencing to impose post-release control because the issue did not arise from the
resentencing hearing. See, State v. Oweis, 5th Dist. Delaware No. 11 CAA 06 0050,
2012-Ohio-443, ¶ 12, citing State v. Fischer, 128 Ohio St. 3d 92, 2010–Ohio–6238, 942
N.E.2d 332 and State v. Franklin, 8th Dist. No. 95991, 2011–Ohio–4953.
{¶13} Appellant had a prior opportunity to litigate the allied-offenses claims he
sets forth in the instant appeal via a timely direct appeal from the sentencing hearing
and resulting judgment entry; his most recent round of arguments are therefore barred
under the doctrine of res judicata. State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d
104 (1967). The Perry court explained the doctrine as follows:
Under the doctrine of res judicata, a final judgment of conviction
bars the convicted defendant 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
Muskingum County, Case No. CT2013-0052 5
been raised by the defendant at the trial which resulted in that
judgment of conviction or on an appeal from that judgment.
State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967).
{¶14} Moreover, appellant’s arguments fail substantively. While appellant’s
argument here does not specifically cite the Ohio Supreme Court’s most recent
pronouncement on allied offenses, he relies upon its rationale and indeed relied upon
Johnson extensively in his argument to the trial court. State v. Johnson, 128 Ohio St. 3d
153, 2010-Ohio-6314, 942 N.E.2d 1061. Johnson does not apply retroactively. State v.
Holliday, 5th Dist. Delaware No. 11CAA1101104, 2012-Ohio-2376, ¶ 16, citing State v.
Parson, 2nd Dist. Montgomery No. 24641, 2012–Ohio–730. The new judicial ruling may
not be applied retroactively to a conviction that has become final, i.e., where the
accused has exhausted all of his appellate remedies. Id., citing Ali v. State, 104 Ohio
St.3d 328, 2004–Ohio–6592. See also, State v. Hill, 5th Dist. Muskingum No. CT11-
0020, 2011-Ohio-3644, appeal not allowed, 130 Ohio St. 3d 1439, 2011-Ohio-5883, 957
N.E.2d 301; State v. Pearson, 5th Dist. Licking No. 13-CA-59, 2013-Ohio-5690.
{¶15} We find appellant’s assignments of error to be barred by res judicata and
the finality of appellate judgments. Appellant’s two assignments of error are overruled.
Muskingum County, Case No. CT2013-0052 6
CONCLUSION
{¶16} Appellant’s two assignments of error are overruled and the judgment of
the Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J. and
Wise, P.J.
Baldwin, J., concur.