State v. Shearer , 2016 Ohio 7302 ( 2016 )

[Cite as State v. Shearer, 2016-Ohio-7302.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103848
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LANDRA SHEARER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-08-510282-A
BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: October 13, 2016
-i-
FOR APPELLANT
Landra Shearer, pro se
Inmate No. 562645
Lake Erie Correctional Institution
P.O. Box 8000
Conneaut, Ohio 44030
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 9th floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant, Landra Shearer (“Shearer”), appeals the trial court’s
denial of his motion to correct the sentencing order and the trial court’s decision denying
him a hearing. We affirm the trial court’s decision.
{¶2} Shearer was found guilty of attempted murder, a first-degree felony, in
violation of R.C. 2903.02(A), with firearm and forfeiture specifications; two counts of
felonious assault, second- and third-degree felonies, in violation of R.C. 2903.11(1) and
(2), with firearm and forfeiture specifications; and two counts of having weapons while
under disability, third-degree felonies, in violation of R.C. 2923.13(A)(2), with firearm
and forfeiture specifications. Shearer was sentenced to 18 years imprisonment.
I. Facts
{¶3} Shearer was sentenced by the trial court on February 20, 2009. He filed a
timely appeal with this court for a new trial. This court affirmed Shearer’s conviction
but remanded for resentencing, holding that felonious assault is an allied offense of
attempted murder. State v. Shearer, 8th Dist. Cuyahoga No. 92974, 2010-Ohio-1666.
The trial court complied with the ruling and entered an entry vacating Shearer’s
conviction for felonious assault. Since then, Shearer has filed nine additional motions
from 2010 until 2015 asking the trial court to correct the already corrected journal entry.
The trial court has repeatedly stated that the issue was resolved on remand. However,
Shearer assigns three errors for our review;
I. The trial court erred when it sentenced appellant to multiple and
consecutive firearm specifications for offenses charged and based from one
single act and action against a single victim in one single shooting incident.
II. The trial court erred in sentencing the appellant to consecutive
sentences for multiple offenses where all the offenses charged are based on
and from a single act where no separate animus to the separate charges have
ever been established to support the multiple consecutive sentences for and
from one single act and action.
III. The trial court erred in sentencing the appellant as if separate acts
were committed at separate times even where and when the bill of
particulars state that all the charged offenses are or were committed at the
same time with the single act committed.
II. Res Judicata
A. Standard of Review
{¶4} “Res judicata, also known as claim preclusion is the doctrine under which a
final judgment on the merits bars a party from bringing another lawsuit based upon the
same claim.” State v. Thompson, 8th Dist. Cuyahoga No. 70532, 1996 Ohio App.
LEXIS 5202 (Nov. 21, 1996). “Res judicata extends to bar not only claims which
actually were litigated, but every question which might properly have been litigated.”
Id.Under the doctrine of res judicata, * * * issues cannot be considered in
postconviction proceedings under Ohio Rev. Code Ann. § 2953.21 where
they have already been or could have been fully litigated by the prisoner
while represented by counsel, either before his judgment of conviction or on
direct appeal from that judgment. Issues properly before a court on a
petition for postconviction relief are issues which could not have been
raised on direct appeal due to the fact that the evidence supporting such
issues is dehors the record. If a court finds that an issue raised in a
petition for postconviction relief has, or should have been raised on direct
appeal or in a previous postconviction relief motion, the trial court may
dismiss the petition on the grounds of preclusion.
Id.B. Law and Analysis
{¶5} Shearer argues three assignments of error contending that the trial court erred
because it did not merge the firearm specifications into a single specification when it
merged the attempted murder and felonious assault convictions. However, his claim is
barred by res judicata.
Under the doctrine of res judicata, a valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the
same transaction or occurrence that was the subject matter of a previous
action. The Ohio Supreme Court has identified four elements necessary to
bar a claim under the doctrine of res judicata: (1) there is a final, valid
decision on the merits by a court of competent jurisdiction; (2) the second
action involves the same parties or their privies as the first; (3) the second
action raises claims that were or could have been litigated in the first action;
and (4) the second action arises out of the transaction or occurrence that
was the subject matter of the previous action.
Lenard v. Miller, 8th Dist. Cuyahoga No. 99460, 2013-Ohio-4703, ¶ 27.
{¶6} Shearer is barred from bringing this claim because he could have raised these
issues in his 2010 appeal.
Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant from raising and litigating in any proceeding, except an
appeal from that judgment, any defense or any 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. Santiago, 8th Dist. Cuyahoga No. 95564, 2011-Ohio-3059, ¶ 14.
{¶7} This court, in State v. Jordan, 8th Dist. Cuyahoga No. 100686,
2014-Ohio-2408, held that the trial court’s denial, of the appellant’s motion for
resentencing because his offenses were allied, was proper because it was barred by res
judicata, and the motion was successive to previously denied motions. This court
rendered a final, valid decision in 2010 on these issues. Shearer’s assignments of error
could have been litigated in the 2010 action because it concerns the same subject matter.
Therefore, Shearer’s claims are barred by res judicata, and we overrule all assignments of
error.
{¶8} Judgment is affirmed.
It is ordered that the appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
__________________________________________
ANITA LASTER MAYS, JUDGE
EILEEN A. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR