State v. Shepherd , 2013 Ohio 271 ( 2013 )

[Cite as State v. Shepherd, 2013-Ohio-271.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98709
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES SHEPHERD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-427416
BEFORE: Stewart, A.J., Rocco, J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: January 31, 2013
FOR APPELLANT
Charles Shepherd, Pro Se
Inmate No. 434286
Grafton Correctional Institution
2075 S. Avon Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} In 2002, a jury found defendant-appellant Charles Shepherd guilty of rape
and attempted kidnapping. The conviction contained sexually violent predator and
repeat violent offender specifications. In June 2012, Shepherd filed a motion to vacate
his sentence as void on grounds that the court submitted the repeat violent offender
specification to the jury in violation of R.C. 2941.149(B). The court denied the motion,
finding it was res judicata because Shepherd failed to raise it on direct appeal and that
“[t]he fact that the defendant may or may not have had a viable appellate issue does not
render his sentence void.” Shepherd’s sole assignment of error contests the court’s
ruling.
{¶2} A final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating in any proceedings, 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 at the trial that resulted in the judgment of
conviction, or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967), paragraph nine of the syllabus. This doctrine, known as res judicata,
“promotes the principles of finality and judicial economy by preventing endless
relitigation of an issue on which a defendant has already received a full and fair
opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, ¶ 18.
{¶3} The court did not err by finding that Shepherd’s motion to vacate his sentence
was barred by res judicata because he failed to raise the issue of the jury determining the
repeat violent offender specification on direct appeal.
{¶4} The record shows that we affirmed Shepherd’s convictions on direct appeal,
rejecting his claims of insufficient evidence, ineffective assistance of counsel, and invalid
sentencing. See State v. Shepherd, 8th Dist. No. 81926, 2003-Ohio-3356. We likewise
denied Shepherd’s request for writs of mandamus and procedendo on the claim that his
sentence was void because the court incorrectly imposed postrelease control. See State
ex rel. Shepherd v. Astrab, 8th Dist. No. 96511, 2011-Ohio-2938, aff’d, 130 Ohio St.3d
361, 2011-Ohio-5789, 958 N.E.2d 573. And in federal habeas proceedings, a magistrate
judge denied Shepherd’s writ of habeas corpus that sought relief on four separate grounds
relating to a ruling in limine, the use of a 13-year-old conviction for impeachment
purposes, insufficient evidence of kidnapping, and that the section of the rape statute
under which he was charged was void for vagueness. See Shepherd v. Ohio, N.D.Ohio
No. 1:04 CV 1283, 2006 U.S. LEXIS 95480 (June 22, 2006).
{¶5} At no time, either on direct appeal or in postconviction proceedings, did
Shepherd raise the issue that the court erred by allowing the jury to determine the repeat
violent offender specification. Nothing prevented him from raising this issue on direct
appeal from his conviction, so principles of res judicata apply in these postconviction
proceedings to bar the assertion of Shepherd’s repeat violent offender claim.
{¶6} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR