State v. Moore , 2016 Ohio 1339 ( 2016 )

[Cite as State v. Moore, 2016-Ohio-1339.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2015CA00137
:
CORVAN MASAI DONTEZ MOORE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2013CR1451
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 28, 2016
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. CORVAN MOORE, PRO SE
STARK CO. PROSECUTOR Inmate No. 650-970
KATHLEEN O. TATARSKY M.C.I.
110 Central Plaza S., Ste. 510 P.O. Box 57
Canton, OH 44702-1413 Marion, OH 43301-0057
Stark County, Case No. 2015CA00137 2
Delaney, J.
{¶1} Appellant Corvan Masai Dontez Moore appeals from the July 17, 2015
Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state of
Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s convictions and sentences
is not necessary to our resolution of this appeal.
{¶3} Appellant was charged by indictment with one count of aggravated robbery
with a firearm specification and one count of felonious assault with a firearm specification.
On December 10, 2013, appellant entered pleas of guilty to the charges and the trial court
merged the firearms specifications for sentencing. Appellant was sentenced to an
aggregate prison term of 10 years.
{¶4} Appellant did not appeal from his convictions and sentences.
{¶5} On July 9, 2015 appellant filed a “Motion for Sentencing; Motion for
Issuance of a Final Appealable Order; Motion for ‘Allied Offense Determination’” which
was overruled by the trial court on July 17, 2015.
{¶6} Appellant now appeals from the trial court’s Judgment Entry of July 17,
2015.
{¶7} Appellant raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶8} “I. WHETHER A TRIAL COURT’S FAILURE TO RENDER [‘AN
ADJUDICATION OF GUILT’] CRIM.R. 32(C), AND INCORPORATE THAT
ADJUDICATION OF GUILT IN ITS JOURNAL ENTRY, STATE V. REESE, 2007 OHIO
Stark County, Case No. 2015CA00137 3
2267 AT ¶ 10, IMPLICATES A FINAL APPEALABLE ORDER PURSUANT TO: O.R.C.
2505.02; AND, OHIO CONST. ART. IV, SECTION 3(B)(2), TEHREBY VIOLATING DUE
PROCESS. SEE: U.S.C.A. CONST. AMEND. 14.” (brackets in original)
{¶9} “II. WHETHER A TRIAL COURT’S FAILURE TO GIVE NOTIFICATION AS
PER THE CONSEQUENCES OF A VIOLATION OF A POSTRELEASE CONTROL
SANCTION, IMPLICATES A FINAL APPEALABLE ORDER AND RENDERS THE
RESULTING ATTEMPTED SENTENCE A NULLITY AND VOID. SEE: O.R.C.
2943.032(E); AND, WOODS V. TELB (2000), 89 OHIO ST.3D 504, 511.”
{¶10} “III. WHETHER A TRIAL COURT’S FAILURE TO STRICTLY COMPLY
WITH THE MANDATORY PROVISIONS OF CRIM.R. 11(C)(2)(a) [WITH RESPECT TO
MANDATORY POSTRELEASE CONTROL NOTIFICATIONS] IMPLICATES THE
VALIDITY OF THE RESULTING PLEA AS FAR LESS THAN KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY MADE. SEE: STATE V. MONTEZ-JONES, 5TH
DIST. NO. ____ (CITATION OMITTED); STATE V. BOSWELL, 121 OHIO ST.3D 575;
AND, STATE V. HOLCOMB, 184 OHIO APP.3D 577, 2009 3187.”
{¶11} “IV. WHETHER A TRIAL COURT IMPLICATES DUE PROCESS BY
ORDERING ‘CONCURRENT SENTENCES’ WHERE THE RECORD ON ITS FACE
CLEARLY SHOWS THAT THE OFFENSES WERE ‘ALLIED OFFENSES OF SIMILAR
IMPORT’ SUBJECT TO MERGER. SEE: STATE V. COLLINS, 2013 OHIO APP. LEXIS
3869, AT: HN 6 (8TH DIST.).”
Stark County, Case No. 2015CA00137 4
ANALYSIS
I., II.
{¶12} Appellant’s first and second assignments of error are related and will be
considered together. Appellant asserts the trial court erred in issuing a faulty judgment
entry of conviction and failed to advise him of post release control. We disagree.
{¶13} It is difficult to discern appellant’s arguments as to the judgment entry of
conviction and the notification of post release control. Appellant cites a number of
different cases, but makes no reference to any specific errors in his own case. As to
appellant’s arguments premised upon his plea, we note a pro se appellant is required to
submit a brief that contains at least some cognizable assignment of error. Robb v.
Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878, at ¶ 5 (4th Dist.).
We are not required to make appellant’s arguments for him. Pursuant to App.R. 16(A)(7)
and 12(A)(2), this court is not required to address arguments that have not been
adequately presented for review or supported by proper authority. Brady v. Bucyrus
Police Dept., 194 Ohio App.3d 574, 2011-Ohio-2460, 957 N.E.2d 339, ¶ 42 (3rd Dist.),
citation omitted.
{¶14} As appellee points out, the trial court’s judgment entry demonstrates
appellant’s change-of-plea was accepted and he was found guilty. The trial court also
imposed a mandatory term of 5 years of post release control upon Count I, aggravated
robbery, and a mandatory term of 3 years upon Count II, felonious assault.
{¶15} Appellant’s first and second assignments of error are overruled.
Stark County, Case No. 2015CA00137 5
III.
{¶16} In his third assignment of error, appellant argues the trial court failed to
comply with Ohio Crim.R. 11 during his change-of-plea hearing. Because appellant has
failed to provide the transcript of the change-of-plea hearing, we must disagree.
{¶17} Ohio Crim. R. 11(C)(2)(a) states in pertinent part: “In felony cases the court
may refuse to accept a plea of guilty * * *, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and doing all of the following:
[d]etermining that the defendant is making the plea voluntarily, with understanding of the
nature of the charges and of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of community control sanctions
at the sentencing hearing.”
{¶18} Again, appellant makes only a summary argument referring to the facts of
his own case, stating he “was not afforded a full hearing.” Brief, 11. In reviewing assigned
error on appeal we are confined to the record that was before the trial court as defined in
App.R. 9(A). This rule provides that the record on appeal consists of “[t]he original papers
and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including
exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the
trial court.”
{¶19} App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript
necessary for resolution of assigned errors are omitted from the record, the reviewing
court has nothing to pass upon and thus, as to those assigned errors, the court has no
choice but to presume the validity of the lower court’s proceedings, and affirm.”
Stark County, Case No. 2015CA00137 6
{¶20} In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The
duty to provide a transcript for appellate review falls upon the appellant. This is
necessarily so because an appellant bears the burden of showing error by reference to
matters in the record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).
{¶21} Appellant has not provided a transcript of the change-of-plea and
sentencing hearing on December 10, 2013. Without a transcript, we must presume the
regularity of the trial court’s proceeding. State v. Ellis, 5th Dist. No. 11-COA-015, 2011-
Ohio-5646, *2.
{¶22} Appellant’s third assignment of error is thus overruled.
IV.
{¶23} In his fourth assignment of error, appellant argues the trial court should
have merged the offenses of aggravated robbery and felonious assault for purposes of
sentencing. We disagree.
{¶24} First, appellant's argument is barred by res judicata. As noted supra,
appellant failed to file a direct appeal of his convictions and sentences, instead
bootstrapping a number of issues to an appeal from his “motion for sentencing.” The
allied-offenses argument could and should have been raised upon direct appeal and is
now barred. “Under the doctrine of res judicata, a final judgment of conviction bars the
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised or
could have raised at the trial which resulted in that judgment of conviction or on appeal
from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v.
Szefcyk, 77 Ohio St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus. See also, State
Stark County, Case No. 2015CA00137 7
v. Winters, 5th Dist. Muskingum No. CT2015-0029, 2016-Ohio-622, ¶ 23, citing State v.
Jones, 5th Dist. Richland No. 12CA22, 2012–Ohio–4957 and State v. Barfield, 6th Dist.
No. Nos. L–06–1262, L–06–1263, 2007–Ohio–1037, ¶ 6 [appellant's argument regarding
allied offenses could have been raised on direct appeal from the trial court's sentencing
entry and res judicata applies even though appellant never pursued a direct appeal].
{¶25} Second, as appellee points out, appellant’s argument also fails
substantively. In this case, appellant pulled a weapon on a victim and demanded money.
When the victim failed to comply, appellant struck him in the head causing serious
physical harm.
{¶26} A defendant may be indicted and tried for allied offenses of similar import,
but may be sentenced on only one of the allied offenses. State v. Carr, 5th Dist. Perry No.
15-CA-00007, 2016-Ohio-9, --N.E.3d--, ¶ 42, citing State v. Brown, 119 Ohio St.3d 447,
2008–Ohio–4569, 895 N.E.2d 149, ¶ 42. R.C. 2941.25 states as follows:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
Stark County, Case No. 2015CA00137 8
{¶27} It is well-established that the commission of aggravated robbery does not
automatically result in the commission of felonious assault. State v. Preston, 23 Ohio
St.3d 64, 65-66, 491 N.E.2d 685 (1986); see also, State v. Richards, 5th Dist. Stark No.
2002CA00057, 2002-Ohio-6847, ¶ 19 [felonious assault and aggravated robbery are not
allied offenses of similar import as a defendant can commit aggravated robbery without
committing felonious assault, and vice versa].
{¶28} Appellant’s fourth assignment of error is overruled.
CONCLUSION
{¶29} Appellant’s four assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.