State v. Gilmore

[Cite as State v. Gilmore, 2012-Ohio-2216.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97844
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KEVIN J. GILMORE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-493778, CR-498126, CR-498813, and CR-499150
BEFORE: Keough, J., Sweeney, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 17, 2012
FOR APPELLANT
Kevin J. Gilmore, pro se
Inmate #553-065
P.O. Box 5500
Chillicothe, OH 45601
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Kevin J. Gilmore, pro se, appeals the trial court’s
judgment denying his “motion to vacate void and illegal judgment and sentence.” For
the reasons that follow, we affirm.
I. Procedural History
{¶2} In 2007, Gilmore was indicted in four separate cases.1 After a bench trial
in Case No. CR-498813, the trial court found Gilmore guilty of failure to comply with an
order or signal of a police officer and having a weapon while under a disability, as well as
the one-year firearm specifications attached thereto. The court acquitted Gilmore of the
other three charges. Subsequently, Gilmore entered guilty pleas as to all charges in the
other three cases. On August 25, 2008, the trial court sentenced Gilmore in all four cases
to a total prison sentence of nine years.
{¶3} This court affirmed Gilmore’s convictions on appeal. State v. Gilmore, 8th
Dist. Nos. 92106, 92107, 92108, and 92109, 2009-Ohio-4230 (“Gilmore I”). The Ohio
Supreme Court declined jurisdiction over Gilmore’s appeal. State v. Gilmore, 125 Ohio
St.3d 1450, 2010-Ohio-2510, 927 N.E.2d 1129.
CR-493778, CR-498126, CR-498813, and CR-499150.
1
{¶4} Gilmore then filed a “motion to vacate void and illegal judgment and
sentence” in the trial court. In his motion, Gilmore argued that his sentence in Case No.
CR-498813 was void because the trial court had not made adequate findings at trial to
determine the level of penalty on the firearm specifications. He argued further that the
trial court had failed to advise him of postrelease control before accepting his guilty pleas
in the other three cases and, therefore, his pleas were not knowingly, voluntarily, and
intelligently made and should be vacated.
{¶5} The trial court denied Gilmore’s motion. It ruled that it had properly
advised Gilmore of postrelease control and that Gilmore’s challenge to his convictions
was barred by the doctrine of res judicata. Gilmore appeals from this judgment.
II. Analysis
{¶6} In his single assignment of error, Gilmore challenges the trial court’s denial
of his motion to vacate. Specifically, he contends that his sentence was “void,” and
therefore not subject to the res judicata bar, because the trial court failed to properly
advise him of postrelease control before accepting his guilty pleas, and did not make
adequate findings at trial in Case No. CR-498813 to determine the level of penalty for the
firearm specifications.
{¶7} 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
proceedings 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 that
resulted in the judgment of conviction, or on an appeal from that judgment. State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. This
doctrine “promotes the principles of finality and judicial economy by preventing endless
relitigation of an issue on which a defendant has already received a full and fair
opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, ¶ 18.
{¶8} While Gilmore correctly asserts that res judicata does not preclude review
of a “void” sentence, 2 the doctrine “still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the ensuing
sentence.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
paragraph three of the syllabus. Thus, to survive the res judicata bar, Gilmore was
required to demonstrate that his sentence was “void.”
{¶9} Gilmore’s motion failed to demonstrate any error, much less “void”
sentencing error. The record reflects that Gilmore did not attach transcripts of the trial,
plea, or sentencing hearings to his motion to vacate. In the absence of such transcripts,
the trial court was permitted to presume that Gilmore was properly informed of
postrelease control before it accepted his guilty pleas and at sentencing, and that the trial
court made adequate findings at trial to support Gilmore’s convictions. State v.
Falkenstein, 8th Dist. No. 96659, 2011-Ohio-5188, ¶ 3, fn.1; State v. Harden, 2d Dist.
“[P]rinciples of res judicata do not apply to void sentences because, by definition, a void
2
sentence means that no final judgment of conviction has been announced.” State v. McGee, 8th
Dist. No. 91638, 2009-Ohio-3374, ¶ 8.
No. 23742, 2010-Ohio-5282, ¶ 17. Likewise lacking any transcripts, we have no record
on which to review the trial, plea, or sentencing hearings, and in that circumstance, must
presume the regularity and validity of the trial court’s proceedings and affirm. Id., citing
Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980).
{¶10} Moreover, even if Gilmore’s sentence were void, the doctrine of res judicata
applies to the arguments he raised in his motion to vacate and on appeal. In State v.
Fountain, 8th Dist. Nos. 92772 and 92874, 2010-Ohio-1202, this court considered the
impact of res judicata on a motion to withdraw a guilty plea filed after the imposition of a
void sentence. This court concluded that “the application of res judicata to a motion to
withdraw a guilty plea is not impacted by a void sentence.” Id. at ¶ 9. Thus, this court
affirmed the trial court’s denial of the defendant’s motion to vacate his plea on the basis
that he had been misinformed at his plea hearing about postrelease control. This court
held that “Fountain could have raised that issue on direct appeal [and,] [t]herefore, his
motion is barred by res judicata.” Id. at ¶ 11. See also State v. Gross, 8th Dist. No.
93819, 2010-Ohio-3727 (defendant’s sentence was void, requiring de novo resentencing,
where the trial court failed to properly advise defendant of postrelease control at
sentencing but res judicata barred consideration of defendant’s motion to withdraw his
plea because defendant did not raise the issue on direct appeal).
{¶11} Here, although Gilmore titled his motion “motion to vacate void and illegal
judgment and sentence,” it was in essence a motion to withdraw his guilty pleas with
respect to the three cases in which he pled guilty. But like the defendant in Fountain,
Gilmore could have raised any issue regarding the adequacy of the trial court’s
postrelease control advisement during the plea colloquys on direct appeal. Because he
did not do so, the issue is barred by res judicata.3
{¶12} Likewise, because Gilmore did not raise any issue on direct appeal regarding
the adequacy of the trial court’s findings on the firearm specifications in Case No.
CR-498813, the doctrine of res judicata bars any further consideration of those issues.
Accordingly, the trial court properly denied Gilmore’s “motion to vacate void and illegal
judgment and sentence.”
{¶13} Affirmed.
It is ordered that appellee recover from appellant 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR
Furthermore, Gilmore challenged the voluntariness of his pleas in Gilmore I,
3
and this court found that his pleas were entered knowingly, intelligently, and
voluntarily. Accordingly, any issue about his pleas is barred by res judicata.