State v. Adams ( 2012 )

[Cite as State v. Adams, 2012-Ohio-17.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. CT2011-0036
JUSTIN ADAMS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2010-0003
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 3, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH JUSTIN ADAMS, PRO SE
Assistant Prosecuting Attorney Noble Correctional Institution
Muskingum County, Ohio 15708 McConnelsville Rd
27 North Fifth Street Caldwell, Ohio 43724
Zanesville, Ohio 43701
Muskingum County, Case No. CT2011-0036 2
Hoffman, P.J.
(¶1) Defendant-appellant Justin Adams appeals the July 19, 2011 Judgment
Entry entered by the Muskingum County Court of Common Pleas denying his motion to
correct illegal sentence. Plaintiff-appellant is the State of Ohio.
STATEMENT OF THE CASE
(¶2) Following an investigation by the Muskingum County Sheriff’s Office
involving a confidential informant, the Muskingum County Grand Jury indicted Appellant
on the following Counts: 1.) trafficking in drugs (cocaine) with a forfeiture specification,
in violation of R.C. 2925.03(A)(1), a felony of the third degree; 2.) trafficking in drugs
(cocaine), with a forfeiture specification, in violation of R.C. 2925.03(A)(1), a felony of
the second degree; 3.) trafficking in drugs (cocaine), with a forfeiture specification, in
violation of R.C. 2925.03(A)(1), a felony of the second degree; 4.) trafficking in drugs
(cocaine), in violation of R.C. 2925.03(A)(1), a felony of the third degree; 5.) trafficking
in drugs (cocaine), in violation of R.C. 2925.03(A)(1), a felony of the first degree; 6.)
having a weapon under disability, in violation of R.C. 2923.13(A)(2), a felony of the third
degree; 7.) engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), a
felony of the first degree; 8.) possession of drug paraphernalia, in violation of R.C.
2925.14(C)(1), a fourth degree misdemeanor.
(¶3) On October 22, 2009, the confidential informant purchased cocaine from
Appellant. On October 29, 2009, Appellant asked the confidential informant to transport
him to pick up monies owed to him, stating he would be restocking his supply of
narcotics. On November 6, 2009, the confidential informant arranged to purchase four
ounces of cocaine from Appellant. On November 12, 2009, the confidential informant
Muskingum County, Case No. CT2011-0036 3
purchased four and one-half ounces of cocaine from Appellant. On December 14,
2009, the confidential informant purchased cocaine from Appellant. On December 29,
2009, Appellant sold nine ounces of cocaine to the confidential informant in a recorded
conversation.
(¶4) On May 17, 2010, Appellant entered a plea of guilty to counts one, four,
five and eight, and to an amended count two and three. The State agreed to make no
recommendation and leave sentencing to the discretion of the trial court. The State
further agreed to nolle counts six and seven at the time of sentencing. Appellant agreed
to all forfeiture items set forth in the specifications.
(¶5) On July 12, 2010, the trial court sentenced Appellant to an aggregate term
of twelve years in prison, and ordered he pay $30,000 in fines. The trial court further
advised Appellant a term of post-release control would be mandatory for five years.
(¶6) On July 15, 2011, Appellant filed a motion to correct illegal sentence. Via
Judgment Entry of July 19, 2011, the trial court denied the motion.
(¶7) Appellant now appeals, assigning as error:
(¶8) “I. TRIAL COURT COMMITTED PLAIN ERROR IN SENTENCING
APPELLANT TO ON [SIC] MULTIPLE CONVICTIONS THAT WERE ALLIED
OFFENSES IN VIOLATION OF R.C. 2941.25, OHIO SUPREME COURT RULING IN
STATE V. JOHNSON 2010-OHIO-6314, U.S. SUPREME COURT RULING IN
MAUMEE V. GEIGER (1976), 45 OHIO ST.2d 238, 244, THE FIFTH AMENDMENT OF
THE UNITED STATES AND THE OHIO CONSTITUTION ARTICLE 1 SECTION 10.”
(¶9) As set forth in the Statement of the Case, supra, Appellant appeals the
July 19, 2011 Judgment Entry of the trial court denying his motion to correct an illegal
Muskingum County, Case No. CT2011-0036 4
sentence. Appellant did not file a direct appeal from his July 12, 2010 sentence herein.
Appellant’s motion to correct the illegal sentence is not a substitute for a direct appeal.
Upon review, we find the trial court properly denied the motion to correct illegal
sentence as Appellant’s sentence is not illegal.1
(¶10) Appellant raises an argument that was capable of being raised on direct
appeal. His argument is barred by res judicata. Under the doctrine of res judicata, a
final judgment of conviction bars a convicted defendant who was represented by
counsel 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 been raised by the defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment. State v. Szefcyk (1996), 77 Ohio St.3d
93, 95 (Emphasis added).
(¶11) Appellant’s sole assignment of error is overruled.
1
Assuming, arguendo, Appellant’s assigned error was not barred by res judicata, we
would overrule the argument on the merits because the offenses were not allied
offenses of similar import as they occurred on different dates and did not involve the
same conduct. State v. Johnson, 2010-Ohio-6314.
Muskingum County, Case No. CT2011-0036 5
(¶12) The July 19, 2011 Judgment Entry of the Muskingum County Court of
Common Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Muskingum County, Case No. CT2011-0036 6
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JUSTIN ADAMS :
:
Defendant-Appellant : Case No. CT2011-0036
For the reasons stated in our accompanying Opinion, the July 19, 2011
Judgment Entry of the Muskingum County Court of Common Pleas is affirmed. Costs to
Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS