State v. Moorer ( 2014 )

[Cite as State v. Moorer, 2014-Ohio-4581.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 101214
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CORNELIUS MOORER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-07-497196-A
BEFORE: Boyle, A.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: October 16, 2014
FOR APPELLANT
Cornelius Moorer, pro se
Inmate No. 543-644
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Anthony T. Miranda
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1.
{¶2} Defendant-appellant, Cornelius Moorer, appeals from the trial court’s denial
of his motion to correct clerical error. Finding no merit to the appeal, we affirm.
Procedural History and Facts
{¶3} In January 2008, Moorer pleaded guilty to drug trafficking in violation of
R.C. 2925.03(A)(1), a first-degree felony, and was subsequently sentenced to eight years
in prison. In the sentencing journal entry, the trial court stated that Moorer was to pay
court costs and that he was subject to five years of postrelease control.
{¶4} Moorer never filed a direct appeal of his conviction and sentence. Instead,
six months following his sentence, Moorer filed a motion to withdraw his guilty plea,
arguing that he did not knowingly change his plea. The trial court denied his motion,
which this court affirmed in State v. Moorer, 8th Dist. Cuyahoga No. 93155,
2009-Ohio-6469 (“Moorer I”). This court noted that Moorer had previously raised the
identical issues in his oral motion to withdraw his guilty plea at the time of sentencing but
failed to directly appeal the trial court’s denial of his oral motion. As a result, this court
found that Moorer’s claim was barred by the doctrine of res judicata. Id. at ¶ 17.
{¶5} In July 2010, Moorer filed a motion for resentencing with the trial court,
challenging the trial court’s imposition of postrelease control. The trial court denied the
motion, and Moorer filed another appeal with this court, which was summarily dismissed
on res judicata grounds. See State v. Moorer, 8th Dist. Cuyahoga No. 96420 (Feb. 10,
2011).
{¶6} In June 2011, the state moved pursuant to Crim.R. 36 to correct a clerical
error in the sentencing journal entry, stating that the sentencing journal entry failed to
mention the sanctions for violating postrelease control despite the trial court stating them
during the sentencing hearing. The trial court granted the state’s motion and issued a
nunc pro tunc entry to specifically state the sanctions.
{¶7} In October 2013, Moorer moved the court to issue another nunc pro tunc
order, asserting that the trial court should change the sentencing journal entry to reflect a
non-mandatory eight-year prison sentence. Two months later, Moorer filed another
motion, titled “Supplemental Judicial Notice to the Court” in further support of his
October 2013 motion. He argued that in addition to the sentencing journal entry
erroneously reflecting a “mandatory” eight-year sentence, the sentencing journal entries
of March 19, 2008, and the nunc pro tunc entry of June 20, 2011, erroneously imposed
court costs despite the trial court having failed to address court costs on the record during
the sentencing hearing.
{¶8} In February 2014, Moorer filed a petition for writ of procedendo, asking
this court to compel the trial court to rule on his motion. The trial court ultimately
denied Moorer’s motion, stating, among other things, the following:
Defendant was sentenced to eight years in prison on March 17, 2008,
as part of a plea agreement he knowingly and voluntarily entered into. In
addition, defendant’s counsel and the trial court mentioned to the defendant
at his sentencing hearing that he was facing mandatory time. * * * In
addition, defendant did not challenge the trial court’s imposition of court
costs on direct appeal and is therefore barred under the doctrine of res
judicata from raising this claim approximately five years after he was
sentenced. * * *
{¶9} From this decision, Moorer appeals, raising a single assignment of error.
Res Judicata
{¶10} In his sole assignment of error, Moorer argues that the trial court abused its
discretion in denying his motions to correct a clerical error in the sentencing journal entry.
Relying on the same arguments in his underlying motions, he contends that the nunc pro
tunc sentencing journal entry erroneously reflects, like the earlier sentencing journal
entry, that he was sentenced to an agreed mandatory sentence of eight years, as opposed
to a non-mandatory eight-year sentence. He further argues that the sentencing journal
entry should not have imposed court costs upon him when the trial court never addressed
court costs at the sentencing hearing.
{¶11} The state counters that Moorer’s arguments are barred by the doctrine of res
judicata. We agree.
{¶12} Res judicata is the “‘[r]ule that a final judgment rendered by a court of
competent jurisdiction on the merits is conclusive as to the rights of the parties and their
privies, and, as to them, constitutes an absolute bar to a subsequent action involving the
same claim, demand or cause of action.’” Holzemer v. Urbanski, 86 Ohio St.3d 129,
132, 712 N.E.2d 713 (1999), quoting Black’s Law Dictionary 1305 (6th Ed.1990). In
the criminal law context, the Ohio Supreme Court has recognized that the doctrine of res
judicata bars claims that were raised or could have been raised on direct appeal. State v.
Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 6.
{¶13} Aside from the fact that Moorer’s argument has no merit, Moorer’s attack of
his sentencing journal entry should have been raised in a direct appeal, which he failed to
file. Under the doctrine of res judicata, Moorer’s claim is barred. Further, in Moorer’s
appeal of his denial of his Crim.R. 32.1 motion to withdraw his plea, this court has
already noted that “[a]s part of the plea agreement, the trial court, the state, and Moorer
had agreed upon an eight-year prison sentence, and five years of mandatory post-release
control.” Moorer I at ¶ 4. Moorer’s argument, therefore, has already been rejected by
this court.
{¶14} We likewise find that Moorer’s challenge to the imposition of court costs is
barred by the doctrine of res judicata. As this court has previously explained,
In [State v.] Joseph, [125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d
278], the Supreme Court held that it was reversible error under Crim.R.
43(A) for the trial court to impose costs in its sentencing entry when it did
not impose those costs at the sentencing hearing. Id. at ¶ 22. Joseph,
however, was decided in the context of a direct appeal from the sentencing
judgment imposing court costs. As we have previously held, Joseph does
not support the argument that a trial court’s failure to orally notify a
defendant in open court before imposing court costs can be corrected after
the appeal period expires. State v. Appleton, 8th Dist. No. 97942,
2012-Ohio-2778; State v. Walker, 8th Dist. No. 96305, 2011- Ohio-5270.
The appropriate forum for challenging court costs is by way of direct appeal
from the sentencing entry; a defendant is barred under the doctrine of res
judicata from raising the issue in a subsequent motion or proceeding. Id.State v. Pettway, 8th Dist. Cuyahoga No. 98836, 2013-Ohio-1348, ¶ 5; see also State v.
Priest, 8th Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 8.
{¶15} Moorer could have raised the issue of court costs in a direct appeal. He
failed to do so and, therefore, his claim is barred under the doctrine of res judicata.
{¶16} Moorer’s single assignment of error is overruled.
{¶17} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, ADMINISTRATIVE JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR