State v. Davis

[Cite as State v. Davis, 2015-Ohio-3141.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102204
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMES A. DAVIS, JR.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-02-428529-A
BEFORE: Stewart, J., McCormack, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: August 6, 2015
FOR APPELLANT
James A. Davis, Jr., pro se
Inmate No. 444-458
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Mary McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant James A. Davis, Jr., pro se, appeals his 2003 murder
conviction on the grounds that his sentence is illegal and void. We find no merit to the
appeal and affirm.
{¶2} In 2002, the Cuyahoga County Grand Jury indicted Davis on charges of
aggravated murder, in violation of R.C. 2903.01 with one- and three-year firearm
specifications, and tampering with evidence in violation of R.C. 2921.12. On April 17,
2003, Davis entered a guilty plea to the amended charge of murder in violation of R.C.
2903.02, in exchange for the dismissal of the firearm specifications and the tampering
with evidence charge. The court sentenced Davis to a prison term of 15 years to life.
{¶3} On July 22, 2003, Davis filed a motion for delayed appeal which this court
granted. Appellate counsel was appointed. Appellate counsel withdrew, and the court
directed Davis to proceed pro se. On February 12, 2004, the appeal was dismissed by
the court for Davis’s failure to file a brief.
{¶4} Since Davis’s initial motion for delayed appeal, he has filed a postconviction
relief petition, a motion to withdraw his guilty plea, another motion for delayed appeal, a
motion to “revise/correct” the sentencing journal entry, and a petition for a writ of
mandamus to the trial court to issue a final appealable order — all of which have been
denied by this court. In this appeal, Davis challenges the trial court’s denial of his
“motion to correct an illegal void sentence due to plain error pursuant to Crim.R. 52(B).”
{¶5} In his first assignment of error, Davis argues that the trial court abused its
discretion by failing to properly consider the felony sentencing guidelines contained in
R.C. 2929.11 and 2929.12 when it imposed a life sentence with the possibility of parole
after 15 years for his murder conviction. In his second assignment of error, Davis argues
that the trial court erred when it sentenced him to a charge that was not included in the
grand jury indictment.
{¶6} Both of these arguments are barred as res judicata. The doctrine of res
judicata prevents a defendant from raising an issue in a postconviction motion or petition
if he already raised the issue on direct appeal or could have raised the issue on direct
appeal. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 92.
Here, Davis could have raised both of these issues on direct appeal. Because he did not,
he is barred from raising them now.1 Therefore, we overrule both assignments of error.
1
We note that 15 years to life is the mandatory sentence for a conviction of murder, see
R.C. 2929.02(B)(1); therefore, the court had no discretion to impose a lesser sentence, and thus
the felony sentencing guidelines would have had no effect on the outcome of the sentence.
Further, the crime of murder is a lesser included offense of aggravated murder with which Davis
was charged. “‘R.C. 2945.74 provides that a criminal defendant may be found guilty of a lesser
{¶7} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
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.
______________________________________________
MELODY J. STEWART, JUDGE
TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR
included offense even though the lesser offense was not separately charged in the indictment.’”
State v. Roscoe, 8th Dist. Cuyahoga No. 99113, 2013-Ohio-3617, ¶ 39, quoting State v. Evans,
122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 8.