State v. Jones ( 2013 )

[Cite as State v. Jones, 2013-Ohio-1134.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Patricia A. Delaney, J.
:
-vs- : Case No. 2012 CA 00178
:
:
JEFFREY JONES : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2010-CR-0458
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 22, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JEFFREY JONES
Prosecuting Attorney Inmate # 600-162
Stark County, Ohio Marion Correctional Institution
P.O. Box 57
BY: KATHLEEN O. TATARSKY Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Jones, 2013-Ohio-1134.]
Hoffman, J.
{¶1} Defendant-Appellant Jeffrey Jones appeals the September 10, 2012
Judgment Entry of the Stark County Court of Common Pleas denying his Motion to
Vacate or Set Aside Sentence. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 18, 2010, the Stark County Grand Jury indicted Appellant on two
counts of felonious assault in violation of R.C. 2903.11(A)(2), felonies of the second
degree, one count of domestic violence in violation of R.C. 2919.25(A), a felony of the
third degree, and one count of intimidation of an attorney, victim or witness in violation
of R.C. 2921.04(B), also a felony of the third degree. The felonious assault counts were
accompanied by firearm specifications. At his arraignment of December 23, 2010,
Appellant entered a plea of not guilty to the charges.
{¶3} Subsequently, on January 20, 2011, Appellant withdrew his former not
guilty plea and pleaded guilty to all of the charges contained in the Indictment. As
memorialized in a Judgment Entry filed on January 24, 2011, Appellant was sentenced
to concurrent two (2) year prison terms on each of the four offenses. The trial court also
merged the firearm specifications and imposed a mandatory consecutive three (3) year
sentence on the firearm specification, for an aggregate prison sentence of five (5) years.
{¶4} Appellant did not file a direct appeal.
{¶5} On January 6, 2012, Appellant filed a Motion to Withdraw Plea. Pursuant
to a Judgment Entry filed on January 27, 2012, such motion was denied.
{¶6} Thereafter, on June 4, 2012, Appellant filed a Motion to Vacate and Set
Aside Void Sentence Pursuant to R.C. 2941.25. Appellant, in his motion, argued the trial
Stark County App. Case No. 2012 CA 00178 3
court had failed to merge his conviction for domestic violence with one of his
convictions for felonious assault because the same were allied offenses of similar
import. Appellant noted the victim with respect to both offenses was his former girlfriend.
{¶7} As memorialized in a Judgment Entry filed on September 10, 2012, the
trial court denied Appellant’s motion.
{¶8} Appellant now raises the following assignment of error on appeal:
{¶9} “TRIAL COURT ERRED WHEN CONVICTING OF CHARGES THAT
WERE TO BE MERGED AS ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT
TO OHIO REVISED CODE 2941.25.”
I
{¶10} Appellant, in his sole assignment of error, argues the trial court erred in
denying his Motion to Vacate and Set Aside Sentence. Appellant specifically maintains
the trial court erred in failing to merge his convictions for felonious assault and domestic
violence because both involved the same victim.
{¶11} 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 dated January 24, 2011. 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
Stark County App. Case No. 2012 CA 00178 4
have been raised by the defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment.” Id.{¶12} Appellant's argument regarding allied offenses could have been raised on
direct appeal from the trial court's sentencing entry, and res judicata applies even
though Appellant never pursued a direct appeal. State v. Jones, 5th Dist. No. 12CA22,
2012–Ohio–4957, ¶ 23.
{¶13} Appellant's sole assignment of error is overruled.
{¶14} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Delaney, J. concur
s/ William B. Hoffman _____________
s/ W. Scott Gwin _________________
s/ Patricia A. Delaney _____________
WBH/d0305
[Cite as State v. Jones, 2013-Ohio-1134.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JEFFREY JONES :
:
Defendant-Appellant : CASE NO. 2012 CA 00178
For the reason stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
s/ William B. Hoffman ________________
s/ W. Scott Gwin ____________________
s/ Patricia A. Delaney ________________