State v. Johnson , 2012 Ohio 1827 ( 2012 )

[Cite as State v. Johnson, 2012-Ohio-1827.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96064
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CHARLES JOHNSON
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION DENIED
Cuyahoga County Court of Common Pleas
Case No. CR-539760
Application for Reopening
Motion No. 450122
RELEASE DATE: April 25, 2012
FOR APPELLANT
Charles Johnson, pro se
Inmate No. 593-732
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Charles Johnson has filed a timely application for reopening pursuant to
App.R. 26(B). Johnson is attempting to reopen the appellate judgment, as rendered in
State v. Johnson, 8th Dist. No. 96064, 2011-Ohio-4954, which affirmed his plea of guilty
and sentence of incarceration with regard to one count of attempted intimidation of a
crime witness or witnesses and one count of menacing by stalking.
{¶2} In his application for reopening, Johnson argues three proposed assignments
of error in support of his claim of ineffective assistance of appellate counsel. Johnson
raises three issues through his proposed assignments of error: (1) improperly convicted of
attempted intimidation; (2) criminal case was improperly charged in Cuyahoga County,
specifically improper venue, because the telephone calls and mail directed to the victim
were sent from Lorain County; and (3) trial court abused its discretion, during sentencing,
by relying on facts outside of the indictment.
{¶3} Each of the aforesaid issues, as currently presented by Johnson through his
application for reopening, have been previously raised and addressed through the
underlying appeal. The following issues were raised and addressed upon direct appeal:
(1) assignment of error one — double jeopardy; (2) assignment of error two — allied
offenses of similar import/merger for sentencing; (3) assignment of error three —
improperly convicted of the offense of intimidation; (4) assignment of error four —
improper venue for indictment; (5) assignment of error five — improper sentence based
upon consecutive, maximum sentences; (6) assignment of error six — trial court abused
its discretion by relying upon facts outside of the indictment for sentencing purposes; and
( 7) assignment of error seven — ineffective assistance of trial counsel. The issues
currently argued by Johnson were previously argued and found to be without merit
through assignments of error three, four, and six.
{¶4} The doctrine of res judicata prevents this court form reopening Johnson’s
appeal. Errors of law that were previously raised on appeal may be barred from further
review vis-a-vis the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). The Supreme Court of Ohio has also established that a claim of
ineffective assistance of appellate counsel may be barred from further review, by the
doctrine of res judicata, unless circumstances render the application of the doctrine
unjust. State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992); State v. Williams,
8th Dist. No. 57988, 1991 WL 21261 (March 4, 1991), reopening disallowed (Aug. 15,
1994), Motion No. 252614. Thus, the doctrine of res judicata bars any further
consideration of the issues as raised by Johnson in support of his claim of ineffective
assistance of appellate counsel. State v. Dehler, 73 Ohio St.3d 307, 1995-Ohio-320, 652
N.E.2d 987; State v. Terrell, 72 Ohio St.3d 247, 1995-Ohio-54, 648 N.E.2d 1352. We
further find that the facts and circumstances, pertinent to this claim of ineffective
assistance of appellate counsel, do not render the application of the doctrine of res
judicata unjust. State v. Murnahan, supra.
{¶5} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR