State v. Smith ( 2012 )

[Cite as State v. Smith, 2012-Ohio-5920.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24553
v. : T.C. NO. 06CR2323
SHAWN D. SMITH : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 14th day of December , 2012.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DANIEL E. BRINKMAN, Atty. Reg. No. 0025365, Suite 2000 Liberty Tower, 120 W.
Second Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
SHAWN D. SMITH, #539771, Southern Ohio Correctional Facility, P. O. Box 45699,
Lucasville, Ohio 45699
Defendant-Appellant
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FROELICH, J.
[Cite as State v. Smith, 2012-Ohio-5920.]
{¶ 1} Shawn D. Smith appeals from a judgment of the Montgomery County
Court of Common Pleas, which, upon remand, sentenced him to an aggregate term of 46
years in prison. For the following reasons, the trial court’s judgment will be affirmed.
{¶ 2} In January 2007, in Case No. 2006 CR 2323, a jury found Smith guilty of
aggravated robbery, robbery, and engaging in a pattern of corrupt activity. (The court
ordered a mistrial concerning an additional aggravated robbery count.) The jury also found
Smith guilty of two additional counts of aggravated robbery, felonious assault, and receiving
stolen property in Case No. 2006 CR 2300, which was tried at the same time. The trial
court sentenced Smith to eight years for the robbery, ten years for the aggravated robbery,
and eight years for engaging in a pattern of corrupt activity, to be served consecutively to
each other and to the 28-year sentence imposed in Case No. 2006 CR 2300. Smith’s
aggregate sentence was 54 years in prison.
{¶ 3} Smith appealed from his convictions in both cases, arguing that his
robbery and aggravated robbery convictions should be set aside under State v. Colon, 118
Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917. He also argued that the trial court abused
its discretion in imposing a 54-year sentence. We held that Colon did not apply to Smith’s
aggravated robbery convictions and that the trial court did not abuse its discretion in
imposing the 54-year sentence. However, we agreed with Smith that the robbery indictment
in Case No. 2006 CR 2323 was defective, that the defect “permeated” his trial on that
charge, and that the defect resulted in structural error. We therefore reversed and vacated
the robbery conviction and remanded this case to the trial court for resentencing; the
remainder of the trial court’s judgment was affirmed. State v. Smith, 2d Dist. Montgomery
Nos. 22041, 22042, 2009-Ohio-5047.
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{¶ 4} The trial court resentenced Smith in May 2011 in Case No. 2006 CR 2323.
The trial court reimposed the ten-year sentence for the aggravated robbery and the eight-year
sentence for engaging in a pattern of corrupt activity. As before, those sentences were to
run consecutively to each other and consecutively to the 28-year sentence in Case No. 2006
CR 2300, for a total of 46 years. Because the judgment in Case No. 2006 CR 2300 was not
affected by our reversal of the robbery conviction, that judgment implicitly was affirmed in
its entirety and there was no proceeding regarding that case.
{¶ 5} Smith appeals from the trial court’s judgment following his resentencing in
Case No. 2006 CR 2323.
{¶ 6} Smith’s appellate counsel filed a brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that after thoroughly examining the
record and the law, he found no potentially meritorious issues for appeal. By entry, we
informed Smith that his attorney had filed an Anders brief on his behalf and granted him 60
days from that date to file a pro se brief. Smith filed a pro se brief and a supplemental brief
raising additional issues for review.
{¶ 7} We agree with appellate counsel that there are no potentially meritorious
issues related to Smith’s resentencing. The case was remanded to the trial court for the sole
purpose of resentencing Smith due to our reversal and vacation of his conviction for robbery.
The trial court reimposed the same sentences for the aggravated robbery and engaging in a
pattern of corrupt activity charges and ran them consecutively to each other and to the
sentence in Case No. 2006 CR 2300, as it did before. We find no arguable error in the trial
court’s actions.
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{¶ 8} In his pro se brief, Smith raises four potential assignments of error: (1) the
trial court abused its discretion in allowing a detective to testify about his oral statement,
(2) the trial court failed to remove a biased juror who was falling asleep during the trial,
(3) aggravated robbery and felonious assault (presumably in Case No. 2006 CR 2300) were
allied offenses of similar import, and (4) trial counsel provided ineffective assistance by
failing to move to strike a juror for cause. In a supplemental pro se brief, Smith raises three
additional arguments: (1) his conviction for engaging in a pattern of corrupt activity should
be reversed because the jury did not find him guilty of all underlying charges and the
indictment was defective, (2) the trial court erred in denying his motion to suppress, and (3)
there was cumulative error.
{¶ 9} Smith’s arguments reflect that he believes that he can challenge all aspects
of his convictions in this appeal. He is mistaken. We reversed and vacated only the
conviction for robbery in Case No. 2006 CR 2323; we affirmed the underlying convictions
for aggravated robbery and engaging in a pattern of corrupt activity in that case and
remanded only for resentencing on those charges. Smith’s convictions in Case No. 2006
CR 2300 were affirmed in their entirety. Our remand was therefore limited to resentencing
in Case No. 2006 CR 2323, and only issues related to that resentencing are subject to
challenge in this appeal. See State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶ 30 (“The scope of an appeal from a new sentencing hearing is limited to issues
that arise at the new sentencing hearing.”).
{¶ 10} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits
bars all subsequent actions based on any claim arising out of the transaction or occurrence
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that was the subject matter of the previous action. Grava v. Parkman Township, 73 Ohio
St.3d 379, 653 N.E.2d 226 (1995). The res judicata bar applies to any defense that was
raised or could have been raised in a criminal defendant’s prior direct appeal from his
conviction and/or sentence. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967).”
State v. Boyce, 2d Dist. Clark No. 11 CA 95, 2012-Ohio-3713, ¶ 10.
{¶ 11} Each of the potential assignments of error that Smith raises could have been
raised in his direct appeal from his convictions. Most of his arguments allege error in the
trial, and the one potential assignment of error regarding sentencing concerns Case No. 2006
CR 2300, which is not relevant to this appeal. As a result, Smith is barred by res judicata
from raising all of these issues now.
{¶ 12} Pursuant to our duty under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102
L.Ed.2d 300 (1988), we have conducted an independent review of the entire record, and we
have found no potential assignments of error having arguable merit.
{¶ 13} The trial court’s judgment will be affirmed.
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GRADY, P.J. and HALL, J., concur.
Copies mailed to:
R. Lynn Nothstine
Daniel E. Brinkman
Shawn D. Smith
Hon. Barbara P. Gorman