State v. Searles

[Cite as State v. Searles, 2012-Ohio-5091.]
COURT OF APPEALS
MORGAN COUNTY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. Sheila G. Farmer, J.
-vs-
DONALD SEARLES Case No. 12-AP-5
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CR01043
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK J. HOWDYSHELL DONALD SEARLES, PRO SE
19 East Main Street #419-561
McConnelsville, OH 43756 Ross Correctional Institution
P.O. Box 7010
Chillicothe, OH 45601
Morgan County, Case No. 12-AP-5 2
Farmer, J.
{¶1} On November 2, 2001, the Morgan County Grand Jury indicted appellant,
Donald Searles, on four counts of rape in violation of R.C. 2907.02, four counts of
sexual battery in violation of R.C. 2907.03, one count of unlawful sexual conduct with a
minor in violation of R.C. 2907.04, one count of gross sexual imposition in violation of
R.C. 2907.05, and one count of having weapons while under disability in violation of
R.C. 2923.13. All the counts save the weapons count included sexually violent predator
specifications.
{¶2} On December 11, 2001, appellant pled guilty to the weapons count. The
remaining counts were scheduled for a jury trial which commenced on December 18,
2001. The jury found appellant guilty as charged. Following sentencing, appellant filed
an appeal with this court. This court reversed appellant's conviction and ordered a
retrial based upon improperly admitted evidence. See, State v. Searles, 5th Dist. No.
02 CA 4, 2003-Ohio-3498.
{¶3} Subsequent to the reversal and remand, appellant pled guilty on May 4,
2004 pursuant to a plea agreement to the one count of unlawful sexual conduct with a
minor and to an amended count of unlawful sexual conduct with a minor. A sentencing
hearing and a sex offender classification hearing were held on May 5, 2004 wherein
appellant stipulated to the classification of sexual predator. By sentencing entry filed
May 7, 2004, the trial court sentenced appellant per the plea agreement to five years on
each count, to be served consecutively, and classified appellant as a sexual predator.
{¶4} On May 31, 2005, appellant filed a pro se motion for reconsideration of
sentence pursuant to Crim.R. 32.1 and/or motion for postconviction relief pursuant to
Morgan County, Case No. 12-AP-5 3
new constitutional ruling, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531(2004). By journal entry filed December 6, 2005, the trial court denied the motion. On
December 30, 2005, appellant filed a notice of appeal with this court. This court
affirmed the trial court's decision. See, State v. Searles, 5th Dist. No. 05 CA 26, 2006-
Ohio-6726.
{¶5} On September 19, 2008, appellant filed a pro se motion for
reconsideration in the pleas agreement and/or the sentencing and sexual classification,
seeking to be "resentenced as a first time offender." The basis of appellant's motion
was a motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. By journal entry
filed October 2, 2008, the trial court denied the motion. On October 21, 2008, appellant
filed a notice of appeal with this court. This court affirmed the trial court's decision.
See, State v. Searles, 5th Dist. No. 08CA0006, 2009-Ohio-2688.
{¶6} On June 22, 2011, appellant filed a petition to contest
classification/adjudication pursuant to Ohio Revised Code 2950 et seq., arguing
following remand, he was not afforded the statutorily required sex offender classification
hearing. By journal entry filed August 19, 2011, the trial court dismissed the petition,
finding the matter had already been heard by the court.
{¶7} On January 18, 2012, appellant filed a motion to reconsider the August 19,
2011 dismissal. By journal entry filed May 29, 2012, the trial court denied the motion.
{¶8} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Morgan County, Case No. 12-AP-5 4
I
{¶9} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S
REQUEST FOR A SEX OFFENDER CLASSIFICATION HEARING VIOLATING HIS
5TH AND 14TH AMENDMENT RIGHTS TO A FAIR TRIAL AND THE DUE PROCESS
OF LAW AS WELL AS PROCEDURAL DUE PROCESS."
I
{¶10} Appellant claims the trial court erred in denying his request for a sex
offender classification hearing. We disagree.
{¶11} In its sentencing entry filed May 7, 2004 following reversal and remand,
the trial court stated it conducted a sentencing hearing on May 5, 2004 and following
sentencing, proceeded to a sex offender classification hearing. The trial court noted
"[b]oth counsel stipulated that he will be classified as a sexual predator, the Court
accepted this stipulation and so classified him."
{¶12} Thereafter, appellant filed appeals to this court, challenging his sentence
and the sexual predator classification. State v. Searles, 5th Dist. No. 05 CA 26, 2006-
Ohio-6726; State v. Searles, 5th Dist. No. 08CA0006, 2009-Ohio-2688. In the 2009
decision, this court specifically found the following at ¶ 11-14:
The trial court did classify appellant as a sexual predator, but
appellant acquiesced to said classification per his plea agreement as
outlined in the trial court's May 6, 2004 change of plea journal entry:
"The Prosecuting Attorney stated the plea agreement as follows:
"(1) Plea to two (2) counts in violation of O.R.C. § 2907.04(A)(B)(3)
(Unlawful Sexual Conduct With a Minor) both a felony of the third degree
Morgan County, Case No. 12-AP-5 5
as amended, with stipulation of consecutive sentencing and sexual
predator status;
"(2) Recommend 5 years prison on each count."
{¶13} We find appellant's current challenge to the sexual predator classification
to be res judicata. Res judicata is defined as "[a] valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out of the
transaction or occurrence that was the subject matter of the previous action." Grava v.
Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.
{¶14} Appellant's arguments regarding his filings in Warren County fail as the
Warren County court dismissed appellant's case which was affirmed on appeal.
Searles v. State, 12th Dist. No. CA2009-05-055, 2009-Ohio-4666.
{¶15} The sole assignment of error is denied.
{¶16} The judgment of the Court of Common Pleas of Morgan County, Ohio is
hereby affirmed.
By Farmer, J.
Delaney, P.J. and
Gwin, J. concur.
s/ Sheila G. Farmer_________________
s/ Patricia A. Delaney_______________
s/ W. Scott Gwin___________________
SGF/sg 924 JUDGES
[Cite as State v. Searles, 2012-Ohio-5091.]
IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DONALD SEARLES :
:
Defendant-Appellant : CASE NO. 12-AP-5
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morgan County, Ohio is affirmed. Costs to
appellant.
s/ Sheila G. Farmer_________________
s/ Patricia A. Delaney_______________
s/ W. Scott Gwin___________________
JUDGES