DocketNumber: No. 91079.
Citation Numbers: 2008 Ohio 6491
Judges: MELODY J. STEWART, J.:<page_number>Page 3</page_number>
Filed Date: 12/11/2008
Status: Non-Precedential
Modified Date: 7/6/2016
{¶ 2} This is the third appeal of this case to this court. The facts are set forth at length in State v. Donahue, Cuyahoga App. No. 89111,
{¶ 3} On November 18, 2005, the trial court sentenced Donahue to seven years on the involuntary manslaughter charge and three years for the failure to stop after an accident charge. Both sentences were to run concurrently. Donahue filed an appeal, challenging the seven-year prison sentence imposed on him by the trial court.
{¶ 4} This court vacated his sentence and remanded the matter for resentencing in accordance with State v. Foster,
{¶ 5} On November 6, 2006, the trial court held a resentencing hearing. Donahue, through his counsel, argued that the initial sentence was harsh and requested that the court impose a sentence of less than five years. After taking into account the factors considered during the initial sentence and the fact that Donahue had availed himself of the various rehabilitative programs in prison, the trial court modified the initial sentence and imposed a sentence of six years imprisonment on the involuntary manslaughter charge and three years for the failure to stop after an accident charge. The sentences were to run concurrently, with credit for time served.
{¶ 6} Donahue filed another appeal, contending that the "trial court erred in imposing more than the minimum sentence, and that his sentence was inconsistent with sentences imposed against similar defendants in similar cases." State v. Donahue, Cuyahoga App. No. 89111,
{¶ 7} Nonetheless, we vacated Donahue's sentence and remanded the matter to the trial court for resentencing because the trial court failed to inform Donahue of his suspended driver's license, and failed to incorporate into the record the terms and conditions of his postrelease control. Id. at ¶ 18, 21. The trial court held a second resentencing hearing on January 22, 2008. Donahue, through his counsel, argued that the license suspension exceeded the statutory maximum and that his resentence was harsh. He requested that the court impose a sentence of either four or five years.
{¶ 8} The trial court stated in its journal entry that it had considered all required factors of the law and that it finds that prison is consistent with the purpose of R.C.
{¶ 9} "THE SENTENCE IMPOSED MUST BE THREE YEARS, REPRESENTING CONCURRENT TERMS OF THREE YEARS IMPRISONMENT FOR INVOLUNTARY MANSLAUGHTER AND ONE YEAR IMPRISONMENT FOR LEAVING THE SCENE OF AN ACCIDENT."
{¶ 10} Donahue argues that Foster should not apply to his case because his offense predated the Foster decision. He claims that a retroactive application of Foster violates his due process rights under the Fourteenth Amendment and Article
{¶ 11} Donahue acknowledges that this court has repeatedly rejected this argument. See State v. Mallette, Cuyahoga App. No. 87984,
{¶ 12} The Ohio Supreme Court has recognized that "any issue that could have been raised on direct appeal and was not is res judicata and not subject to *Page 7
review in subsequent proceedings." State v. Saxon,
{¶ 13} Moreover, as Donahue acknowledged, we have repeatedly rejected arguments on whether Foster violates an appellant's due process rights or the ex post facto clause. See State v. Crim, Cuyahoga App. No. 90222,
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed. *Page 8
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas 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.
*Page 1JAMES J. SWEENEY, A.J., and ANN DYKE, J., CONCUR