State v. Alexander , 2014 Ohio 2710 ( 2014 )

[Cite as State v. Alexander, 2014-Ohio-2710.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-T-0100
- vs - :
RICKEY ALEXANDER, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 92 CR
605.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).
Alexander Rickey, pro se, PID: A281461, Lake Erie Correctional Institution, 501
Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Rickey Alexander, appeals from the September 18, 2013
judgment of the Trumbull County Court of Common Pleas, dismissing his motion to
vacate void judgment without a hearing.
{¶2} In the early morning hours of September 4, 1992, Anthony Borden was
found shot to death in the parking lot of the Niles Road Fruit Market in Howland
Township, Trumbull County, Ohio. Following an investigation by the police, appellant
was indicted by the Trumbull County Grand Jury on October 26, 1992 on one count of
aggravated murder, in violation of R.C. 2903.01(B), with a specification of an
aggravating circumstance pursuant to R.C. 2929.04(A)(7); and one count of aggravated
robbery, in violation of R.C. 2911.01 with a firearm specification.
{¶3} The matter proceeded to a jury trial beginning on August 19, 1993 and
concluding with the jury returning guilty verdicts on both charges and specifications on
August 26, 1993. On September 13, 1993, appellant was given a life sentence with 30
years actual incarceration on the aggravated murder charge, to run consecutive to a 10
to 25 year sentence on the aggravated robbery charge, and a three year sentence on
the firearm specification which would also be served consecutively.
{¶4} Appellant, who was represented by counsel, appealed his conviction and
sentence, Case No. 93-T-4948. On November 29, 1996, this court affirmed the
judgment of the trial court. State v. Alexander, 11th Dist. Trumbull No. 93-T-4948, 1996
Ohio App. LEXIS 5418 (Nov. 29, 1996), appeal not accepted, 78 Ohio St.3d 1452(1997).
{¶5} Fifteen years later on November 8, 2011, appellant filed a pro se “Motion
for Leave to File Delayed Motion for New Trial” pursuant to Crim.R. 33(A). The trial
court denied the motion on the ground that appellant was not unavoidably prevented
from discovering any new evidence. Appellant filed a second appeal with this court, pro
se, Case No. 2011-T-0120. On September 28, 2012, this court affirmed the judgment of
the trial court. State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-
4468, motion denied by, 134 Ohio St.3d 1416, 2013-Ohio-158.
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{¶6} Thereafter, on September 9, 2013, appellant filed a pro se “Motion to
Vacate Void Judgment and Sentence Notwithstanding the Verdict, or, in the Alternative,
for a New Trial.” The state filed a response four days later. On September 18, 2013,
the trial court determined that appellant’s motion was barred by res judicata and
dismissed his motion without a hearing. Appellant filed the instant appeal, pro se,
asserting three assignments of error for our review:
{¶7} “[1.] Appellant contends the trial court erred in entering a conviction of a
first-degree felony because the verdict form and the trial court’s verdict entry were
inadequate to support his conviction for aggravated murder and aggravated robbery.
{¶8} “[2.] Appellant submits that the trial court committed reversible error when
it submitted to the jury, verdict forms containing a statutory description of the offense of
aggravated murder and aggravated robbery, but omitted the offense’s essential
elements as instructed by the Court from the jury verdict forms.
{¶9} “[3.] The trial court’s imposition of consecutive sentences was contrary to
law and an abuse of discretion.”
{¶10} In his first and second assignments of error, appellant argues the trial
court erred in convicting him because the verdict forms were inadequate. In his third
assignment of error, appellant contends the trial court erred in sentencing him.
{¶11} Because appellant’s assignments of error are interrelated, as they are all
barred by the doctrine of res judicata, we will address them together.
{¶12} “‘(P)rinciples of res judicata prevent relief on successive, similar motions
raising issues which were or could have been raised originally.’ Brick Processors, Inc.
v. Culbertson, 2 Ohio App.3d 478, * * *, paragraph one of the syllabus (8th Dist.1981).
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Stated differently, any issues that were raised or could have been raised by a defendant
at the trial court level or on direct appeal are res judicata and not subject to review in
subsequent proceedings. State v. Perry, 10 Ohio St.2d 175, * * *, paragraph nine of the
syllabus (1967); State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, ¶6, * * *.” State v.
Morris, 11th Dist. Trumbull No. 2013-T-0019, 2013-Ohio-5485, ¶20. (Parallel citations
omitted.)
{¶13} Almost two decades after this court affirmed his conviction and sentence,
appellant now seeks a new trial based on purported R.C. 2945.75(A)(2) deficiencies in
his jury verdict forms. Appellant argues that under State v. Pelfrey, 112 Ohio St.3d 422,
2007-Ohio-256, the forms were improper. He alleges that he should have been
convicted of lesser offenses. Appellant also asserts that the state failed to prove “prior
calculation and design” and that the phrase was not included in his verdict forms.
{¶14} R.C. 2945.75(A)(2) provides that “[w]hen the presence of
one or more additional elements makes an offense one of more serious degree * * * [a]
guilty verdict shall state either the degree of the offense of which the offender is found
guilty, or that such additional element or elements are present. Otherwise, a guilty
verdict constitutes a finding of guilty of the least degree of the offense charged.”
{¶15} “[P]ursuant to the clear language of R.C. 2945.75, a verdict form signed by
a jury must include either the degree of the offense of which the defendant is convicted
or a statement that an aggravating element has been found to justify convicting a
defendant of a greater degree of a criminal offense.” Pelfrey, supra, at ¶14.
{¶16} We find that the trial court did not err by applying res judicata in this case
and appellant’s argument that the jury verdict forms were defective is precluded by res
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judicata. Appellant has already pursued a direct appeal from his conviction, where the
trial court’s decision was upheld. See Alexander, 1996 Ohio App. LEXIS 5418. In that
appeal, appellant asserted five assignments of error, raising issues regarding a
preemptory challenge, sealing of a file, hearsay statements, hearsay testimony, and
manifest weight. Appellant did not raise any errors related to defects in the jury verdict
forms under Pelfrey. He could have raised such errors in his direct appeal but failed to
do so. See State v. Garner, 11th Dist. Lake No. 2010-L-111, 2011-Ohio-3426, ¶22,
citing State v. Szefcyk, 77 Ohio St.3d 93, at the syllabus (1996); State v. Perri, 11th
Dist. Portage No. 2009-P-0014, 2009-Ohio-6153, ¶16.
{¶17} Appellant concedes that he did not object below regarding the jury verdict
forms but asserts that Pelfrey allows parties to raise the issue even if was waived at the
trial court level. While this is true, Pelfrey does not hold that res judicata is inapplicable
in situations where the appellant has not only waived the issue at the trial court level but
also failed to raise the issue in his direct appeal. See Garner, supra, at ¶23. Appellate
courts that have addressed this issue have found that, where the appellant filed and
argued a direct appeal but did not raise any arguments under Pelfrey or related to the
inadequacy of the jury verdict form, res judicata applies to subsequent appeals. Id.; see
State v. Evans, 9th Dist. Wayne No. 10CA0027, 2011-Ohio-1449, ¶9 (holding that
“because Evans could have raised issues related to the jury verdict forms in his direct
appeal, he is foreclosed from raising the issue at this time”); State v. Foy, 5th Dist. Stark
No. 2009-CA-00239, 2010-Ohio-2445, ¶8 (where the appellant failed to raise the issue
of jury verdict form defects under Pelfrey during his direct appeal, res judicata barred
him from raising the issue in a subsequent appeal).
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{¶18} Although we need not address the merits of appellant’s claims as they are
precluded by res judicata, we note that the lower court’s jury verdict forms contain no
deficiencies. We further note that aggravated murder and aggravated robbery do not
contain different degrees of seriousness. See State v. Markins, 4th Dist. Scioto No.
10CA3387, 2013-Ohio-602, ¶77. In addition, with regard to appellant’s “prior calculation
and design” argument, aggravated murder under R.C. 2903.01 at the time appellant
was sentenced in 1993 stated in part:1
{¶19} “(A) No person shall purposely, and with prior calculation and design,
cause the death of another.
{¶20} “(B) No person shall purposely cause the death of another while
committing or attempting to commit, or while fleeing immediately after committing or
attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery
or robbery, aggravated burglary or burglary, or escape.”
{¶21} Contrary to appellant’s assertion, we note that “prior calculation and
design” is not at issue in this case. Appellant was charged with one count of
aggravated murder in violation of R.C. 2903.01(B). Section (B) does not include the
element of “prior calculation and design.” Rather, Section (A) includes the “prior
calculation and design” element. However, appellant was not charged under that
section. Thus, appellant’s argument that the state failed to prove “prior calculation and
design” and that the phrase was not included in his verdict forms is not only barred by
res judicata but is completely groundless.
1. See also State v. Souders, 5th Dist. Stark No. 1994CA00148, 1995 Ohio App. LEXIS 5982 (Nov. 6,
1995) (citing the former version of R.C. 2903.01(A) and (B)). We note that the current version of R.C.
2903.01(A) and (B) is essentially similar to the former version.
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{¶22} Finally, appellant also now challenges his maximum, indeterminate 10 to
25 year sentence on the aggravated robbery charge. That sentence was handed down
over 20 years ago on September 13, 1993. As stated, appellant, who was represented
by counsel, appealed his conviction, Case No. 93-T-4948. However, he did not raise
any sentencing issues. Thus, although appellant could have raised this issue in his
direct appeal, he did not, so it is barred by res judicata. See State v. Bradley, 11th Dist.
Ashtabula No. 2003-A-0102, 2006-Ohio-196, ¶18.
{¶23} Although we need not address the merits of appellant’s sentencing claim
as it is precluded by res judicata, we note that the lower court imposed a proper
sentence. Appellant was sentenced prior to S.B. 2 which went into effect in 1996 and
significantly overhauled Ohio’s sentencing scheme. At the time of appellant’s
conviction, the trial court correctly imposed penalties available for an aggravated felony
of the first degree, to wit: an indeterminate term of 5, 6, 7, 8, 9, or 10 to 25 years. See,
e.g., State v. Canfield, 9th Dist. Medina No. 03CA0078-M, 2004-Ohio-2123, ¶11. Thus,
appellant’s sentence was within the statutory range at the time that it was imposed.
{¶24} Appellant’s three assignments of error are barred by res judicata and are
without merit.
{¶25} For the foregoing reasons, appellant’s assignments of error are not well-
taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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