State v. Qunnie

[Cite as State v. Qunnie, 2014-Ohio-1435.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100317
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALONZO QUNNIE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-96-345622
BEFORE: McCormack, J., E.A. Gallagher, P.J., and E.T. Gallagher,
J.
RELEASED AND JOURNALIZED: April 3, 2014
[Cite as State v. Qunnie, 2014-Ohio-1435.]
FOR APPELLANT
Alonzo Qunnie, pro se
Inmate No. 340-014
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
[Cite as State v. Qunnie, 2014-Ohio-1435.]
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Alonzo Qunnie, pro se, appeals the trial
court’s denial of his “motion for de novo sentencing.” For the following
reasons, we affirm.
Procedural History
{¶2} This case stems from events that occurred on May 30, 1996.1 For
his participation in those events, Qunnie was convicted in April 1997 of
aggravated murder in Count 1, aggravated burglary in Count 2, and
aggravated robbery in Count 3, with each count including firearm
specifications. The trial court sentenced Qunnie in Count 1 to life without
parole for 20 years and three years on the gun specification, to be served
consecutively. Qunnie was sentenced to 7 to 25 years in Counts 2 and 3, to
run concurrently with each other and consecutive to Count 1.
{¶3} On May 23, 1997, Qunnie appealed his conviction, alleging
insufficiency of the evidence. On appeal, this court affirmed Qunnie’s
conviction, finding that Qunnie was a full participant in the charged crimes
and the evidence was sufficient to establish that he formed the requisite
criminal intent when he discussed the crimes with his co-conspirators and he
made two overt acts toward the commission of those crimes. See State v.
For a detailed recitation of the substantive facts of this case, consult this court’s opinion in
1
State v. Qunnie, 8th Dist. Cuyahoga No. 72580, 1998 Ohio App. LEXIS 3158 (July 9, 1998).
Qunnie, 8th Dist. Cuyahoga No. 72580, 1998 Ohio App. LEXIS 3158 (July 9,
1998). Qunnie appealed to the Ohio Supreme Court, which was
subsequently dismissed. Thereafter, Qunnie filed an application for
reopening, which this court denied.
{¶4} On August 5, 2013, Qunnie filed a “motion for de novo sentencing”
with the trial court, which was denied. He now appeals the denial of this
motion, presenting five assignments of error for our review.2
Assignments of Error
I. Whether the trial court violated procedural due process and
abused its discretion by denying defendant-appellant’s properly
pled and substantive[] motion for de novo sentencing pursuant to
State v. Billiter, 134 Ohio St.3d 103.
II. Whether the trial court violated procedural due process and
abused its discretion by denying defendant-appellant’s properly
pled and substantive[] motion for de novo sentencing pursuant to
State v. Jordan, 104 Ohio St.3d 21, as the court failed to strictly
comply with the relevant statutes by not making such findings on
the record at the sentencing hearing.
III. Whether the trial court violated procedural due process and
abused its discretion by denying defendant-appellant’s properly
pled and substantive[] motion for de novo sentencing, as the court
failed to impose jail time credit in the journal entry as required
by Corder v. Wilson, 68 Ohio App.3d at 573.
We note that in his reply brief, Qunnie responds with three additional assignments of error.
2
Upon review of the supplemental assignments, we find them to be duplicative of Qunnie’s initial
assignments (Nos. 6, 7, and 8 are identical to Nos. 1, 3, and 5, respectively) and, therefore, we
consider the supplemental assignments of error under our analysis of assignments of error I through V
as outlined in this opinion.
[Cite as State v. Qunnie, 2014-Ohio-1435.]
IV. Whether the trial court violated procedural due process and
abused its discretion by denying defendant-appellant’s properly
pled and substantive[] motion for de novo sentencing, as the trial
court improperly imposed a mandatory three year prison term for
a violation of R.C. 2941.141.
V. Whether the trial court violated procedural due process and
abused its discretion by denying defendant-appellant’s properly
pled and substantive[] motion for de novo sentencing, as the trial
court failed to impose a sentence for two of the firearm
specifications in violation of State v. Baker, 119 Ohio St.3d 197.
Postrelease Control
{¶5} In his first assignment of error, Qunnie argues that his sentence is
void because he was not properly notified of postrelease control at his
sentencing hearing. Consequently, he claims that this court should remand
his case to the trial court for a de novo sentencing hearing. In support of his
argument, Qunnie relies on case law analyzed under the amended sentencing
provisions of Am.Sub.S.B. No. 2.
{¶6} We note, however, that the amended sentencing provisions of
Am.Sub.S.B. No. 2 apply only to those crimes that were committed on or after
July 1, 1996. State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998),
paragraph two of the syllabus. Moreover, “postrelease control does not apply
to pre-Am.Sub.S.B. No. 2 sentences for crimes committed on or before July 1,
1996, as post-release control did not exist prior to July 1, 1996.” State v.
Gavin, 8th Dist. Cuyahoga No. 90017, 2008-Ohio-2042, ¶ 11; see also State v.
Bewley, 8th Dist. Cuyahoga No. 84312, 2005-Ohio-4159.
[Cite as State v. Qunnie, 2014-Ohio-1435.]
{¶7} Postrelease control notice requirements were incorporated into
law in Ohio with the enactment of Am.Sub.S.B. No. 2. State v. Ferrell, 5th
Dist. Stark No. 2013CA00121, 2013-Ohio-5521, ¶ 9; State v. Bailey, 10th Dist.
Franklin No. 97APA06-754, 1999 Ohio App. LEXIS 2333 (May 18, 1999).
Prior to postrelease control, certain offenders were subject to parole. Ferrell,
citing State v. Gimbrone, 2d Dist. Montgomery No. 23062, 2009-Ohio-6264.
And S.B. 2 introduced postrelease control in place of parole. Id.{¶8} Here, Qunnie’s crimes occurred on May 30, 1996. Because the
crimes occurred before the effective date of S.B. 2 of July 1, 1996, Qunnie is
not subject to the postrelease control provisions of S.B. 2 and is therefore not
entitled to any notification of postrelease control. As such, the trial court did
not err in failing to notify him of any postrelease control on his sentences for
aggravated murder, aggravated burglary, and aggravated robbery.
{¶9} Qunnie’s first assignment of error is overruled.
Statutorily Mandated Findings
{¶10} In his second assignment of error, Qunnie claims that the trial
court failed to make the statutorily mandated findings upon imposition of his
sentence in accordance with R.C. 2929.11, 2929.12, 2929.13, 2929.14, and
2929.19. Once again, Qunnie relies on case law analyzed under the amended
sentencing provisions of Am.Sub.S.B. No. 2. We find this claim is barred by
res judicata.
[Cite as State v. Qunnie, 2014-Ohio-1435.]
{¶11} Under the doctrine of res judicata, a final judgment of conviction
bars the convicted defendant from raising and litigating in any proceeding,
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 that judgment of conviction or on an appeal from that
judgment. State v. Segines, 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259,
¶ 8, citing State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
Therefore, any issue that could have been raised on direct appeal and was not
is res judicata and not subject to review in subsequent proceedings. State v.
Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.
{¶12} Here, Qunnie had an opportunity to raise the issue with respect
to the trial court’s findings in his direct appeal in 1997, but he did not.
Rather, he waited more than 15 years to challenge his sentence in this court.
The doctrine of res judicata therefore prohibits our review. See State v.
Petitto, 8th Dist. Cuyahoga No. 99893, 2013-Ohio-5435.
{¶13} Moreover, R.C. 2929.14 and 2929.29 were originally enacted as
part of Am.Sub.S.B. No. 2, effective July 1, 1996. See Goudlock v. State, 8th
Dist. Cuyahoga No. 84135, 2004-Ohio-2352; State v. Stevens, 12th Dist.
Butler No. CA2010-08-211, 2011-Ohio-2595. As we previously stated, the
amended sentencing provisions of Am.Sub.S.B. No. 2 apply only to those
crimes that were committed on or after July 1, 1996. Rush, 83 Ohio St.3d 53,
697 N.E.2d 634. Because Qunnie’s crimes occurred prior to the effective date
of S.B. 2, R.C. 2929.14 and 2929.29, and any statutorily mandated findings
associated therewith, do not apply to Qunnie’s sentence.
{¶14} Qunnie’s second assignment of error is overruled.
Jail-Time Credit, Mandatory Prison Term, and Sentencing Entry
{¶15} We address Qunnie’s final three assignments of error together,
finding that they are all barred by the doctrine of res judicata.
{¶16} In his third assignment of error, Qunnie contends that the trial
court failed to impose jail-time credit. Qunnie did not raise this issue in his
direct appeal in 1997. His claim is therefore barred by res judicata. Perry,
10 Ohio St.2d at 180, 226 N.E.2d 104; see also State v. Fitzgerald, 8th Dist.
Cuyahoga No. 98723, 2013-Ohio-1893, ¶ 3 (applying res judicata to bar the
assertion of jail-time-credit claim in postconviction proceedings).
{¶17} In his fourth assignment of error, Qunnie claims that the trial
court improperly imposed a mandatory prison term for his conviction of a
firearm specification. This claim addresses Qunnie’s sentence and therefore
could have been raised in his direct appeal. Because Qunnie did not timely
appeal any aspect of his sentence, this claim is barred by res judicata. See
State v. Ruffin, 8th Dist. Cuyahoga No. 98764, 2013-Ohio-1447.
[Cite as State v. Qunnie, 2014-Ohio-1435.]
{¶18} Finally, in his fifth assignment of error, Qunnie challenges the
sentencing entry, claiming that the trial court “failed to impose a sentence for
two of the firearm specifications.” Qunnie appears to argue that the journal
entry improperly set forth his sentence for firearm specifications, where he
was convicted of three firearm specifications, yet only one sentence is noted
on the sentencing entry. The entry provides that Qunnie is sentenced to
“LIFE without Parole for 20 years and 3 years Gun Specifications consecutive
on count 1 (23 years to LIFE) on count 1 and 7 years to 25 years on counts 2
and 3 to run concurrent but consecutive with count 1.”
{¶19} This journal entry existed at the time of Qunnie’s direct appeal in
1997 in which he challenged the sufficiency of the evidence. Because Qunnie
could have raised this issue regarding the sentencing entry in his direct
appeal, but he did not, his claim is now barred by res judicata. State v.
Brooks, 8th Dist. Cuyahoga No. 98380, 2012-Ohio-5292, ¶ 8; State v. Morris,
11th Dist. Trumbull No. 2013-T-0019, 2013-Ohio-5485, ¶ 22.
{¶20} Qunnie’s third, fourth, and fifth assignments of error are
overruled.
{¶21} Judgment affirmed.
It is ordered that appellee recover of 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. 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.
______________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
[Cite as State v. Qunnie, 2014-Ohio-1435.]