Ohio v. Nash , 2011 Ohio 6548 ( 2011 )

[Cite as Ohio v. Nash, 2011-Ohio-6548.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
v.
Case No. 2011CA00146
SHAWN L. NASH
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2008CR2161
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 12, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO, GEORGE URBAN
PROSECUTING ATTORNEY, 116 Cleveland Ave. NW
STARK COUNTY, OHIO Suite 808
Canton, Ohio 44702
By: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00146 2
Hoffman, P.J.
{¶ 1} Defendant-appellant Shawn L. Nash appeals the June 24, 2011 Judgment
Entry entered by the Stark County Court of Common Pleas, which denied his motion for
resentencing. Plaintiff-appellee is the State of Ohio.
STATEMENT OF CASE1
{¶ 2} On December 26, 2008, the Stark County Grand Jury indicted Appellant
on three counts of trafficking in cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(d),
felonies of the third degree; one count of possession of cocaine, in violation of R.C.
2925.11(A)(C)(4)(c), a felony of the third degree; and two counts of possession of
cocaine, in violation of R.C. 2925.11(A)(C)(4)(b), felonies of the fourth degree. The trial
court issued a warrant for Appellant’s arrest, which was returned on February 12, 2010.
Appellant appeared before the trial court for arraignment on February 19, 2010, and
entered a plea of not guilty to all charges. Upon motion of Appellee, the trial court
permitted Appellee to amend Count One of the Indictment from trafficking in cocaine, a
felony of the third degree to trafficking in cocaine, a felony of the fifth degree; and Count
Two from possession of cocaine, a felony of the third degree, to possession of cocaine,
a felony of the fifth degree.
{¶ 3} Appellant appeared before the trial court on March 29, 2010, and entered
a plea of guilty to the amended indictment. The trial court found Appellant guilty, and
deferred the imposition of sentence pending a presentence investigation by the
probation department.
1
A Statement of the Facts underlying Appellant’s conviction is not necessary for our
disposition of this appeal.
Stark County, Case No. 2011CA00146 3
{¶ 4} Appellant appeared before the trial court for sentencing on April 28, 2010.
The trial court sentenced Appellant to three years of community control subject to the
general supervision and control of the court. The trial court reserved the imposition of
an eighty-three month prison term in the event Appellant failed to comply with the terms
and conditions of his community control. Appellant did not take a direct appeal from the
sentence.
{¶ 5} On May 24, 2010, Appellant’s probation officer filed a motion to revoke
probation or modify former order. Appellant had been charged with OVI in Wayne
County on May 9, 2010, and failed to report the arrest to his probation officer.
Additionally, Appellant failed to report to the probation officer on May 12, 2010, and May
24, 2010. Finally, Appellant violated curfew on May 23, 2010. Via Journal Entry filed
November 24, 2010, the trial court revoked Appellant’s community control, and
sentenced him to an aggregate term of imprisonment of eighty-three months. The trial
court filed a Judgment Entry on December 2, 2010, memorializing the same. Appellant
did not take a direct appeal from the revocation of his community control.
{¶ 6} On June 23, 2011, Appellant filed a pro se motion for resentencing,
arguing his crimes were allied offenses of similar import. The trial court denied
Appellant’s motion via Judgment Entry filed June 24, 2011. The trial court found the
elements required for the offenses of trafficking in cocaine and possession of cocaine
were different. The trial court also found each of the three trafficking offenses and each
of the three possession offenses were committed on different days, i.e., September 25,
2008, February 27, 2008, and October 30, 2008.
Stark County, Case No. 2011CA00146 4
{¶ 7} It is from this Judgment Entry Appellant appeals, raising its sole
assignment of error:
{¶ 8} “I. THE TRIAL COURT ERRD WHEN IT DENIED APPELLANT’S
MOTION FOR RESENTENCING.”
{¶ 9} This case comes to us on the accelerated calendar. App. R. 11. 1, which
governs accelerated calendar cases, provides in pertinent part:
{¶ 10} “(E) Determination and judgment on appeal.
{¶ 11} “The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.
{¶ 12} “The decision may be by judgment entry in which case it will not be
published in any form.”
{¶ 13} This appeal shall be considered in accordance with the aforementioned
rule.
I
{¶ 14} In his sole assignment of error, Appellant maintains the trial court erred in
denying his motion for resentencing.
{¶ 15} We find Appellant’s allied offenses claim is barred by the doctrine of res
judicata. “[A] convicted defendant is precluded under the doctrine of res judicata 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 appeal
from that judgment.” State v. Szefcyk (1996), 77 Ohio St. 3d 93, 96, 671 N.E.2d 233.
Stark County, Case No. 2011CA00146 5
{¶ 16} Appellant was convicted and sentenced on May 4, 2010. Appellant did
not take a direct appeal from his original sentence. On December 2, 2010, Appellant’s
community control was revoked and Appellant was sentenced to eighty-three months in
prison. Again, Appellant did not take a direct appeal challenging either the revocation of
his community control and/or the imposition of his sentence. We find Appellant is
barred from raising this argument at this juncture.
{¶ 17} Appellant’s sole assignment of error is overruled.
{¶ 18} The judgment of the Stark County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise _____________________
HON. JOHN W. WISE
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00146 6
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
v. : JUDGMENT ENTRY
:
SHAWN L. NASH :
:
Defendant-Appellant : Case No. 2011CA00146
For the reason stated in our accompanying Opinion, the judgment of the Stark
County Court of Common Pleas is affirmed. Costs assessed to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ John W. Wise______________________
HON. JOHN W. WISE
s/ Julie A. Edwards ___________________
HON. JULIE A. EDWARDS