State v. Rupert

[Cite as State v. Rupert, 2017-Ohio-8121.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-17-018
Appellee Trial Court No. 2014CR0532
v.
Travis Rupert DECISION AND JUDGMENT
Appellant Decided: October 6, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Travis Rupert, pro se.
*****
OSOWIK, J.
{¶ 1} This is a timely, accelerated appeal from a March 1, 2017 judgment of the
Wood County Court of Common Pleas, denying pro se appellant’s motion for
resentencing. Appellant, Travis Rupert, was originally sentenced on June 10, 2015, to a
six-year term of incarceration following appellant’s conviction on one count of burglary.
The court ordered the sentence to be served concurrently with a sentence appellant was
serving on an unrelated felony conviction in Franklin County, Ohio. For the reasons set
forth below, this court affirms the judgment of the trial court.
{¶ 2} On December 18, 2014, appellant was charged with one count of burglary.
On June 10, 2015, appellant entered a voluntary plea. On February 2, 2017, appellant
filed a motion for resentencing. In support, appellant maintained that the trial court’s
sentence was improper on the basis that it diverged from the state’s sentencing
recommendation. The trial court correctly noted that it is not bound by sentencing
recommendations. On March 1, 2017, the motion was denied.
{¶ 3} On March 31, 2017, appellant filed the instant appeal. On May 4, 2017, this
court placed appellant’s case on the accelerated calendar. On appeal, pro se appellant,
Travis Rupert, sets forth the following two assignments of error:
1. The trial court failed to substantially comply with Criminal Rule
11 by improperly advising Defendant-Appellant that the court was not
bound by any agreements that may have been part of a recommendation.
2. The trial court errored [sic] in accepting Defendant-Appellant’s
inability to understand the sentence range and legal rights he was waiving
when he pleaded guilty.
{¶ 4} We note at the outset that there was no direct appeal filed in this case
following the underlying June 10, 2015 trial court sentencing judgment. Rather, the
claims set forth in this appeal arise from the denial of appellant’s February 2, 2017
motion for resentencing. It is well-established that an appellant is barred from raising
2.
claims against a final judgment that have been raised, or could have been raised, on direct
appeal. State v. Colvin, 7th Dist. Mahoning No. 15-MA-162, 2016-Ohio-5644, ¶ 45.
{¶ 5} In addition, we further note that appellant did not submit the transcripts
relating to this case as mandated by App.R. 9(B).
{¶ 6} In both assignments of error, appellant asserts that the trial court failed to
comply with Crim.R. 11 because it imposed a sentence inconsistent with the state’s
sentencing recommendation. Such claims are barred by res judicata as they could have
been raised on direct appeal.
{¶ 7} In addition to the applicability of res judicata, an appellant filing a case with
the appellate court bears the burden of providing the transcripts of proceedings and any
other materials allegedly supporting the claims. State v. Williams, 73 Ohio St.3d 162,
163, 652 N.E.2d 721 (1995). The record reflects that appellant failed to do so in this
case.
{¶ 8} Based upon the foregoing, we find that appellant’s claims in this matter are
barred by res judicata as they could have been raised on direct appeal. We further find
that appellant has not complied with App.R. 9(B). Wherefore, we find appellant’s
assignments of error to be not well-taken.
{¶ 9} On consideration whereof, the judgment of the Wood County Court of
Common Pleas is hereby affirmed. Pursuant to App.R. 24, costs of the appeal are
assessed to appellant.
Judgment affirmed.
3.
State v. Rupert
C.A. No. WD-17-018
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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