State v. Carter

[Cite as State v. Carter, 2011-Ohio-4509.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
{¶ 1} Nos. 96338, 96339, 96340, 96342, 96343,
{¶ 2} 96344, 96345, 96346
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LAWRENCE CARTER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-441174, CR-441175, CR-441176, CR-441177,
CR-441178, CR-441179, CR-441180, CR-441193
BEFORE: Blackmon, P.J., Celebrezze, J., and Jones, J.
2
RELEASED AND JOURNALIZED: September 8, 2011
APPELLANT PRO SE
Lawrence Carter
Inmate No. 453-994
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Matthew E. Meyer
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
3
{¶ 3} Appellant Lawrence Carter (“Carter”) appeals pro se the trial
court’s denial of his motion to withdraw his guilty plea and assigns the
following three errors for our review:
“I. The trial court erred in not granting the appellant’s
motion to withdraw his plea of guilty that was not
knowingly, intelligently, and voluntarily made, violating
his right to due process as guaranteed by both the United
States & Ohio Constitutions.”
“II. The trial court erred in not dismissing the appellant’s
indictment(s) that are constitutionally insufficient to
charge any criminal offense whatsoever under Ohio Law,
violating appellant’s rights under the Sixth and
Fourteenth Amendments to the United States
Constitution, and Article I, Section 10 of the Ohio
Constitution.”
“III. The trial court erred imposing consecutive
sentences on the appellant when no such statutory
authority exists for the imposition of such, violating the
appellant’s constitutional rights pursuant to the Fifth,
Sixth, & Fourteenth Amendments to the United States
Constitution, & Article I, Section 10 of the Ohio
Constitution.”
{¶ 4} Having reviewed the record and pertinent law, we affirm the trial
court’s decision. The apposite facts follow.
Facts
{¶ 5} On October 23, 2003, Carter pled guilty to aggravated robbery with
firearm specifications in eight different cases. The trial court sentenced him
to a total of 15 years of which 12 years were for the firearm specifications.
4
{¶ 6} On August 24, 2010, Carter filed motions to impose a lawful
sentence in all eight cases, arguing the trial court failed to properly impose
postrelease controls. He also filed a motion to withdraw his guilty plea,
alleging his plea was not knowingly entered due to various deficiencies. The
trial court denied Carter’s motion to withdraw his guilty plea, but granted his
motion to impose a lawful sentence and reimposed postrelease control.
Res Judicata
{¶ 7} We address Carter’s assigned errors together as they are all barred
by res judicata. In his assigned errors, Carter argues the trial court erred by
not granting his motion to withdraw his guilty plea and alleges various ways
his plea was deficient; claims his indictment was invalid; and that the trial
court erred by imposing consecutive sentences.
{¶ 8} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d
332,
{¶ 9} the Ohio Supreme Court held that when a judge fails to impose
statutorily mandated postrelease control as part of a defendant’s sentence, it is
only that part of the sentence that is void and subject to review and correction.
Id. at ¶26–27. The Fischer court also held that res judicata “applies to other
aspects of the merits of a conviction, including the determination of guilt and
the lawful elements of the ensuing sentence.” Id. at paragraph three of the
5
syllabus. Applying Fischer, we conclude that Carter’s arguments are barred by
res judicata.
{¶ 10} Carter did not bring a direct appeal from his original 2003
sentence. Nor did he seek a delayed appeal of his convictions. 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. Perry
(1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. In
the instant case, all the alleged errors existed at the time of his 2003 plea and
sentence. Therefore, the proper manner to argue these issues would have been
a direct appeal from the 2003 sentence. See State v. Padgett, Cuyahoga App.
No. 95065, 2011-Ohio-1927; State v. Rolling, Cuyahoga App. No. 95473,
2011-Ohio-121, at ¶21; State v. Fountain, Cuyahoga App. Nos. 92772 and
92874, 2010-Ohio-120; State v. Howard, 11th Dist. No. 2010-L-048,
2011-Ohio-2840.
{¶ 11} Carter acknowledges that the Supreme Court’s holding in Fischer
would bar his arguments, but contends that because he originally entered his
plea and was sentenced before Fischer was decided, we should not
retroactively apply Fischer’s holding. Prior to Fischer, courts deemed a
6
conviction entirely void, which allowed defendants to raise errors that would
normally be barred by res judicata. “The general rule is that a decision of a
court of supreme jurisdiction overruling a former decision is retrospective in
its operation, and the effect is not that the former was bad law, but that it
never was the law.” Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 129
N.E.2d 467. Moreover, the Fischer Court did not declare that its decision was
only prospective in operation. Thus, retroactive application of Fischer is
appropriate.
{¶ 12} Even if res judicata did not apply, the claimed errors are without
merit. Carter failed to provide this court with a transcript of his guilty plea.
Without a transcript of the 2003 plea hearing, the record is inadequate to
permit a review of Carter’s claimed errors, and we must presume the
regularity of the court proceedings. Knapp v. Edwards Laboratories (1980),
61 Ohio St.2d 197, 199, 400 N.E.2d 384.
{¶ 13} Regarding his arguments that his indictment was defective and
consecutive sentence improper, Carter failed to raise these issues in the court
below. Nonetheless, a plea waives any defect in the indictment. State v.
Martin,
{¶ 14} Cuyahoga App. No. 95281, 2011-Ohio-222; State v. Haney, 180
Ohio App.3d 554, 2009-Ohio-149, 906 N.E.2d 472, ¶18; State v. Griffin,
Cuyahoga App. No. 92728, 2010-Ohio-437; State v. Hawkins, Cuyahoga App.
7
No. 91930, 2009-Ohio-4368; State v. Gaston, Cuyahoga App. No. 92242,
2009-Ohio-3080. Pursuant to R.C. 2929.14(E)(1)(a), the trial court was
obligated to order that the firearm specifications be served consecutively.
Accordingly, Carter’s three assigned errors are overruled.
{¶ 15} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court 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.
_________________________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR