State v. Simmons ( 2014 )

[Cite as State v. Simmons, 2014-Ohio-4163.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 13 JE 40
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
MICHAEL SIMMONS, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 05 CR 130.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Hanlin
Jefferson County Prosecutor
Jefferson County Justice Center
16001 State Route 7
Steubenville, OH 43952
No Brief Filed
For Defendant-Appellant: Michael Simmons, Pro-se
#491-890
Warren Correctional Institution
P.O. Box 120
Lebanon, OH 45036
JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: September 19, 2014
[Cite as State v. Simmons, 2014-Ohio-4163.]
DeGenaro, P.J.
{¶1} Appellant Michael Simmons appeals the judgment of the Jefferson County
Court of Common Pleas overruling his petition to vacate or set aside sentence, arguing
that his trial counsel was ineffective. Any issue regarding his trial counsel's effectiveness
is res judicata. Simmons appealed his original sentence in 2006 and raised this issue at
that time, albeit for a different reason. Based on the principles of res judicata his
assignment of error is meritless and the judgment of the trial court is affirmed.
{¶2} The facts of this case were detailed in State v. Simmons, 7th Dist. No. 06 JE
4, 2007-Ohio-1570, ¶2-3 (Simmons I). On August 11, 2005, Simmons sold crack cocaine
to a confidential informant. The sale took place less than 500 feet from Steubenville High
School, and there was a juvenile in the passenger seat of Simmons' vehicle at the time of
the sale.
{¶3} Simmons was subsequently convicted by the jury on one count of corrupting
a minor, R.C. 2925.02 (A)(4)(c) & (C)(1), a first-degree felony with a specification that the
offense was committed in the vicinity of a school; one count of trafficking in crack cocaine
in an amount that equals or exceeds one gram but is less than five grams, R.C.
2925.03(A)(1) & (C)(4)(c), a third-degree felony with a specification that the offense was
committed in the vicinity of a school or a juvenile; one count of tampering with evidence,
R.C. 2921.12(A)(1) a third-degree felony; and one count of possession of crack cocaine
in an amount that equals or exceeds one gram but is less than five grams, R.C.
2925.11(A) & (C)(4)(b) a fourth-degree felony.
{¶4} In a judgment entry filed January 13, 2006, the trial court sentenced
Simmons to a total of 15 years in prison (eight years for corrupting a minor, three years
for trafficking in crack cocaine, three years for tampering with evidence, and 12 months
for possession of crack cocaine). Simmons appealed, and this court affirmed his
conviction but vacated his sentence and remanded the matter for resentencing based on
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470. Simmons I at ¶174.
On remand, the trial court held a resentencing hearing. On April 19, 2007, the trial court
imposed the same 15-year sentence, which Simmons appealed, and the sentence was
affirmed. State v. Simmons, 7th Dist. No. 07 JE 22, 2008-Ohio-3337.
-2-
{¶5} On October 26, 2006, Simmons filed a petition for post-conviction relief.
The trial court overruled the petition on May 8, 2007 and the judgment was not appealed.
On December 11, 2009, Appellant filed a motion to vacate his sentence due to errors in
the imposition of post-release control. On January 27, 2010, the trial court reissued the
conviction and sentence to correct any errors regarding post-release control language,
Simmons appealed, and the sentence was affirmed. State v. Simmons, 7th Dist. No. 10-
JE-4, 2011-Ohio-2625.
{¶6} On May 17, 2013, Simmons filed another motion to vacate sentence, this
time on the theory that the trial court failed to merge allied offenses pursuant to R.C.
2941.25 as interpreted by Johnson. The trial court denied the motion on May 22, 2013.
Based upon res judicata this court affirmed the judgment of the trial court. State v.
Simmons, 7th Dist. No. 13 JE 15, 2014-Ohio-1014.
{¶7} On September 18, 2013, Simmons again filed a petition to vacate or set
aside judgment in the trial court, which was overruled on November 27, 2013.
{¶8} In his sole assignment of error, Simmons asserts:
{¶9} "The trial court abused it's (sic) discretion when it rejected Appellant's
petition to vacate his convictions because of his counsels (sic) ineffectiveness."
{¶10} Although Simmons' brief is unclear on appeal, the motion filed in the trial
court indicates Simmons believes his trial counsel was ineffective because he did not
review the plea agreement with him. Simmons further states in his attached affidavit that
had he known about the plea deal he would have taken it. This is in direct contravention
to the arguments raised in Simmons I. In his direct appeal one of the reasons Simmons
argued that his trial counsel was ineffective was because trial counsel advised him to
plead, but Simmons thought he had a good case. Simmons I at ¶14. This court
continued:
Counsel met with appellant on various occasions. They discussed the
elements of the charges and the evidence. They met to watch the
videotapes and listen to the audiotapes. Counsel spoke with appellant's
-3-
mother and aunt. Counsel reviewed the offered plea bargain with its
attendant benefits and risks. Counsel subpoenaed the one witness
provided by appellant and prepared a defense involving attacking the
informant's credibility. Communication concerning the case occurred and
was even attempted to be extended by counsel. Substitution was not
required in this case. (emphasis added)
Simmons I at ¶23.
{¶11} "Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or 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 an appeal from that judgment." State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d
104 (1967).
{¶12} The issue of trial counsel's effectiveness relative to Simmons' entering a
plea was raised and resolved in his direct appeal. Based upon the principle of res
judicata, Simmons' assignment of error is meritless and the judgment of the trial court is
affirmed.
Donofrio, J., concurs.
Waite, J., concurs.