State v. Pulliam , 2017 Ohio 127 ( 2017 )

[Cite as State v. Pulliam, 2017-Ohio-127.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 16CA3759
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
LENWARD PULLIAM, :
:
Defendant-Appellant. : Released: 01/13/17
_____________________________________________________________
APPEARANCES:
Lenward Pulliam, London, Ohio, Pro Se Appellant.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment denying Appellant Lenward Pulliam’s motion for re-sentencing.
On appeal, Appellant contends that 1) the trial court erred by failing to make
the statutory findings required before imposing consecutive sentences; 2) the
trial court erred in failing to grant his motion for re-sentencing and by failing
to hold a merger hearing as to counts three and five; and 3) the trial court
erred by not making findings as to the major drug offender portion of his
sentence. We find all of Appellant’s arguments are barred by the doctrine of
Scioto App. No. 16CA3759 2
res judicata and we do not reach the merits of this case. Accordingly, the
decision of the trial court is affirmed.
FACTS
{¶2} We set forth the facts as determined previously in Appellant’s
direct appeal of this matter. Appellant, Lenward Pulliam, was indicted on
February 1, 2013 on a multi-count felony indictment containing thirteen
felony counts involving possession and trafficking in drugs (cocaine, heroin,
oxycodone, oxymorphone, hydrocodone, and alprazolam), as well as one
count of tampering with evidence. As a result of plea negotiations,
Appellant entered into a plea agreement that included an agreed sentence of
eighteen years, which required Appellant to plead guilty to two of the first-
degree felony counts (trafficking in heroin and trafficking in oxycodone,
with a major drug offender specification), in exchange for the State’s
dismissal of the remaining eleven counts contained in the indictment. Upon
the acceptance of Appellant’s guilty pleas, the trial court sentenced
Appellant, as recommended and agreed, to eighteen years in prison, which
consisted of an eleven-year term and a seven-year term, to be served
consecutively.
{¶3} Appellant appealed his convictions and sentences, arguing that
the trial court erred when it imposed consecutive sentences without making
Scioto App. No. 16CA3759 3
the required findings pursuant to R.C. 2929.14. He also raised an ineffective
assistance of counsel argument, claiming that his counsel failed to argue
strong, mitigating factors at sentencing. We found that because Appellant’s
sentence was imposed pursuant to a negotiated plea agreement which
included an agreed sentence, it was not subject to appellate review under
R.C. 2953.08(D), and therefore we overruled both of Appellant’s
assignments of error and affirmed the decision of the trial court. State v.
Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759, ¶ 2.
{¶4} Thirteen months later, Appellant filed a motion in the trial court
entitled “Defendant’s Motion for Re-Sentencing Pursuant to Crim.R. 52(B)
Sentence Contrary to Law failing to hold a Merger Hearing.” Appellant’s
motion contained three arguments. The first argument related to the trial
court’s imposition of consecutive sentences. The second argument related to
the trial court’s imposition of consecutive sentences for what Appellant
claimed were allied offenses of similar import, without holding a merger
hearing. Appellant’s third argument claimed that the trial court failed to
make necessary findings before imposing sentence on the mandatory drug
offender portion of Appellant’s sentence.
{¶5} On May 24, 2016, the trial court issued a judgment entry denying
Appellant’s motion for re-sentencing. The trial court denied Appellant’s
Scioto App. No. 16CA3759 4
consecutive sentencing and mandatory drug offender arguments on their
merits and held that Appellant’s allied offenses argument was barred by res
judicata as it should have been raised on direct appeal. It is from this order
that Appellant now brings his current appeal, setting forth three assignments
of error for our review.
ASSIGNMENTS OF ERROR
“I. THE TRIAL COURT ERRED BY FAILING TO MAKE
STATUTORY FINDINGS AS TO THE CONSECUTIVE
SENTENCES, PURSUANT TO R.C. 2929.14(C)(4) WHEN
IMPOSING CONSECUTIVE SENTENCES.
II. THE TRIAL COURT ERRED IN FAILING TO GRANT
DEFENDANT’S MOTION FOR RE SENTENCING [SIC]
PURSUANT TO CRIM.R. 52(B) SENTENCE CONTRARY TO
LAW AND BY FAILING TO HOLD A MERGER HEARING AS
TO COUNTS {3} THREE AND COUNTS {5} FIVE OF THE
INDICTMENT.
III. THE TRIAL COURT ERRED BY NOT MAKING FINDINGS AS
TO THE MAJOR DRUG OFFENDERS [SIC] SENTENCE,
PURSUANT TO R.C. 2929.19 AT SENTENCING.”
STANDARD OF REVIEW
{¶6} As Appellant’s current appeal stems from the trial court’s denial
of his post-conviction motion for re-sentencing, and because each of his
current arguments challenge the trial court’s imposition of sentence in
connection with his original convictions, we set forth our standard of review
when reviewing felony sentences. When reviewing felony sentences we
Scioto App. No. 16CA3759 5
apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Taylor,
138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 40; State v. Marcum,
2016-Ohio-1002, –––N.E.3d ––––, ¶ 1. R.C. 2953.08(G)(2) specifies that an
appellate court may increase, reduce, modify, or vacate and remand a
challenged felony sentence if the court clearly and convincingly finds either
that “the record does not support the sentencing court's findings” under the
specified statutory provisions or “the sentence is otherwise contrary to law.”
Id.ASSIGNMENT OF ERROR I
{¶7} In his first assignment of error, Appellant contends that the trial
court erred by failing to make the statutory findings required by R.C.
2929.14 before imposing consecutive sentences. The State contends that
Appellant’s argument is barred by the doctrine of res judicata, as the
argument was already raised in Appellant’s direct appeal. Based upon the
following, we agree with the State.
{¶8} The current appeal stems from the denial of a post-conviction
motion for re-sentencing. A review of the record indicates that Appellant
raised an argument identical to this argument in his direct appeal of this
matter. As noted above, we denied the argument based upon the fact that
Appellant’s consecutive sentences were imposed pursuant to a negotiated
Scioto App. No. 16CA3759 6
plea agreement, which included an agreed sentence, and as such was not
subject to appellate review under R.C. 2953.08(D). State v. Pulliam, supra,
at ¶ 2.
{¶9} Subsequent to the issuance of that decision, the Eleventh District
Court of Appeals certified a conflict to the Supreme Court of Ohio between
itself and the Fourth and Second Districts on the following issue:
“In the context of a jointly-recommended sentence, is the trial
court required to make consecutive-sentence findings under
R.C. 2929.14(C) in order for its sentence to be authorized by
law and thus not appealable?” State v. Sergent, 2015-Ohio-
2603, 38 N.E.3d 461, ¶ 36 (11th Dist.)
The Supreme Court of Ohio addressed the conflict in State v. Sergent, 2016-
Ohio-2696, -- N.E.3d --, and answered the question in the negative, finding
“that such a sentence is ‘authorized by law’ and not appealable. Thus, the
reasoning we employed in denying this argument in Appellant’s direct
appeal of this matter has been declared valid and sound.
{¶10} “Under the doctrine of res judicata, a final judgment of
conviction bars a convicted defendant who was represented by counsel 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 trial, which resulted in that
judgment of conviction, or on an appeal from that judgment.” State v.
Scioto App. No. 16CA3759 7
Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus. Here,
Appellant clearly raised an argument identical to this one in his direct appeal
of this matter. As such, he is barred under the doctrine of res judicata from
attempting to re-litigate that issue now. Accordingly, his first assignment of
error is overruled.
ASSIGNMENT OF ERROR II
{¶11} In his second assignment of error, Appellant contends that the
trial court erred in failing to grant his motion for re-sentencing, which
argued that his consecutive sentences were contrary to law as they were
allied offenses of similar import, and that the trial court should have held a
merger hearing. Appellant specifically contends that the two counts to
which he pled guilty, count three, trafficking in drugs/heroin, and count five,
trafficking in drugs/oxycodone/major drug offender, constituted allied
offenses of similar import which should have merged for purposes of
sentencing. The State contends that this argument is barred by the doctrine
of res judicata because the argument could have been raised on direct appeal,
but was not. Once again, we agree with the State.
{¶12} Although this Court has acknowledged that “[a] criminal
defendant has the right to appeal the issue of allied offenses under R.C.
2941.25, even if the defendant entered into a plea bargain and even if the
Scioto App. No. 16CA3759 8
sentence was an agreed sentence under R.C. 2953.08(D)[,]” the Supreme
Court of Ohio has recently reaffirmed that:
“when a trial court finds that convictions are not allied offenses
of similar import, or when it fails to make any finding
regarding whether the offenses are allied, imposing a separate
sentence for each offense is not contrary to law, and any error
must be asserted in a timely appeal or it will be barred by
principles of res judicata.” State v. Pigge, 4th Dist. Ross No.
09CA3136, 2010-Ohio-6541, ¶ 38; citing State v. Underwood,
124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph
one of the syllabus. State v. Williams, 2016-Ohio-7658, --
N.E.3d--, ¶ 26; relying on State v. Holdcroft, 137 Ohio St.3d
526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8-9. (Emphasis added).
As we have discussed, Appellant already had a direct appeal of his
convictions and sentences. He raised no arguments in his direct appeal
related to the trial court’s failure to hold a merger hearing. Further, although
he did argue in his direct appeal that the trial court erred in imposing
consecutive sentences, he did not argue that the consecutive sentences were
improper because his offenses were allied offenses of similar import.
{¶13} As set forth above, the doctrine of res judicata “bars a convicted
defendant who was represented by counsel 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 trial, which resulted in that judgment of conviction, or on an
appeal from that judgment.” State v. Szefcyk, supra, at syllabus. Because
Scioto App. No. 16CA3759 9
Appellant failed to raise an allied offenses argument as part of his direct
appeal, the argument is barred by the doctrine of res judicata and he cannot
raise it now on appeal from the denial of his motion for re-sentencing. This
result is consistent with the result in State v. Holdcroft, supra, the reasoning
of which was recently reaffirmed in State v. Williams, supra.1 Accordingly,
Appellant’s second assignment of error is overruled.2
ASSIGNMENT OF ERROR III
{¶14} In his third assignment of error, Appellant contends that the
trial court erred by not making findings as to the major drug offender portion
of his sentence, pursuant to R.C. 2929.19 at sentencing. The State contends
that R.C. 2929.19 does not require any specific findings be made before
imposing sentence for a major drug offender specification, and points out
that Appellant pleaded guilty to the felony that included the major drug
offender specification. The State contends, in the alternative, that this
1
State v. Williams held that “imposing separate sentences for allied offenses of similar import is contrary to
law and such sentences are void. Therefore, res judicata does not preclude a court from correcting those
sentences after a direct appeal.” Williams at ¶ 2. However, upon further reading of the opinion, the Court
limits this holding to situations where “a trial court concludes that the accused has in fact been found guilty
of allied offenses of similar import” but then goes on to impose sentences for both offenses. Williams at
¶ 29. The Court contrasts this situation from a scenario where “neither the parties nor the trial court had
raised the issue whether the convictions were for allied offenses of similar import” or where “the court had
not found that the convictions should merge for purposes of sentencing.” Id. The Court reasoned that in the
latter scenarios, “the imposition of separate sentences therefore was not contrary to law.” Id. The Court
also noted its prior statement in Holdcroft, supra, at ¶ 8 “that our void sentence jurisprudence does not
apply to ‘challenges to a sentencing court’s determination whether offenses are allied.’ (Emphasis added).”
Williams at ¶ 24.
2
We note that Appellant, under this assignment of error, requested that this Court certify a conflict with
regard to the question “whether conviction for trafficking in different types of drugs are allied offenses of
similar import.” However, the proper method of seeking certification of a conflict is to file a separate
motion to certify a conflict under App.R. 25.
Scioto App. No. 16CA3759 10
argument is also barred by the doctrine of res judicata. We agree with each
and every argument advanced by the State under this assignment of error.
{¶15} We initially conclude that, for essentially the same reason the
second assignment of error is barred by res judicata, this argument is also
barred by res judicata. The lack of any specific findings as to the mandatory
drug offender portion of Appellant’s sentence was known to Appellant at the
time of his direct appeal. As such, he should have raised the argument at
that time. Because it was capable of being raised but was not raised, in
accordance with the law and reasoning set forth above, the argument is now
barred by the doctrine of res judicata.
{¶16} Further, Appellant has presented us with no authority stating
that a trial court’s failure to make specific findings prior to imposing
sentence on a major drug offender, let alone in the context of an agreed plea
and sentence, renders a sentence void, thereby removing it from the
application of the principles of res judicata. In the recent Supreme Court of
Ohio case of State v. Williams, supra, the Court discussed the evolution of
its “void sentence jurisprudence,” and noted its prior determinations that
failure to impose a statutorily mandated term of post-release control, failure
to include a mandatory driver’s license suspension in the offender’s
sentence, and failure to include a mandatory fine in the sentence all result in
Scioto App. No. 16CA3759 11
the sentence being void. State v. Williams at ¶ 21; citing State v. Singleton,
124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 18, 23, 36; State v.
Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph
one of the syllabus; State v. Moore, 135 Ohio St.3d 151, 2010-Ohio-5479,
985 N.E.2d 432, syllabus. As noted above, the Supreme Court in Williams
further extended its “void sentence jurisprudence” to scenarios where a trial
court determines prior to sentencing that offenses constitute allied offenses
of similar import, but then fails to merge them for purposes of sentencing
and imposes sentences on all counts. Williams at ¶ 29. However, Appellant
has presented us with no authority and we are aware of no authority which
states a trial court’s failure to make findings prior to imposing sentence on a
major drug offender specification results in a void sentence. As such, we
conclude that the traditional principles of res judicata apply to bar
Appellant’s argument.
{¶17} Finally, in an abundance of caution, we note that even if res
judicata does not apply, at least one court has found that a plea of guilty to a
major drug offender specification constituted consent to having the issue
determined by a court and not a jury and thus waived any potential objection
to judicial fact-finding on the issue. State v. Newton, 2nd Dist. Montgomery
No. 24154, 2011-Ohio-2186, ¶ 23 (and further reasoning that “[a] plea of
Scioto App. No. 16CA3759 12
guilty is a complete admission of factual guilt and, accordingly, the
defendant’s factual guilt is removed from further consideration.) (internal
citations omitted). We find this principle to apply, even more so, in the
context, where here, Appellant pleaded guilty to the major drug offender
specification as part of an agreed plea and sentence. We reached the same
result in State v. Chapple, a case involving Appellant’s co-defendant, in
which Chapple argued on direct appeal that the trial court did not make
required findings prior to imposing sentence on a major drug offender
specification. State v. Chapple, 4th Dist. Scioto No. 13CA3591, 2015-Ohio-
532, ¶ 19; citing State v. Rammel, 2nd Dist. Montgomery Nos. 25899 and
25900, 2014-Ohio-1281, ¶ 10.
{¶18} As such, we find that this argument is barred by both the
doctrine of res judicata, as well as the fact that his sentence is not subject to
appellate review as it was imposed pursuant to an agreed plea and sentence.
Thus, Appellant’s third assignment of error is overruled. Accordingly,
having found no merit in any of the assignments of error raised by
Appellant, the trial court’s decision denying Appellant’s motion for
resentencing is affirmed.
JUDGMENT AFFIRMED.
Scioto App. No. 16CA3759 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.