State v. Deresse

[Cite as State v. Deresse, 2014-Ohio-4234.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 14-CA-31
:
DAWIT DERESSE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 08 CR 403
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 18, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
KENNETH W. OSWALT DAWIT N. DERESSE, PRO SE
LICKING CO. PROSECUTOR #596-718
20 S. Second St., 4th Floor Marion Correctional Institution
Newark, OH 43055 P.O. Box 57
Marion, OH 43301
Licking County, Case No. 14-CA-31 2
Delaney, J.
{¶1} Appellant Dawit Deresse appeals from the April 1, 2014 Judgment Entry of
the Licking County Court of Common Pleas overruling his “Defendant Leave Motion to
Correct a Void Sentence pursuant to R.C. 2941.25/Motion for Hearing” (sic). Appellee
is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions is not
necessary to our resolution of this appeal.
{¶3} On June 13, 2008, appellant was charged by indictment as follows:
Count 1, trafficking in crack cocaine (vicinity of a juvenile) in violation of R.C.
2925.03(A)(1)(C)(4)(d), a felony of the second degree; Count 2, trafficking in crack
cocaine (vicinity of a juvenile) in violation of R.C. 2925.03(A)(1)(C)(4)(e), a felony of the
first degree; Count 3, trafficking in crack cocaine (vicinity of a school), in violation of
R.C. 2925.03(A)(1)(C)(4)(d), a felony of the second degree; Count 4, trafficking in
cocaine (vicinity of a juvenile), in violation of R.C. 2925.03(A)(1)(C)(4)(d), a felony of the
second degree; Count 5, possession of crack cocaine, in an amount equal to or
exceeding one gram but less than five grams, in violation of R.C. 2925.11(A)(C)(4)(b), a
felony of the fourth degree; Count 6, possession of crack cocaine, in violation of R.C.
2925.11(A)(C)(4)(e), a felony of the first degree; Count 7, possession of cocaine, in
violation of R.C. 2925.11(A)(C)(4)(b), a felony of the fourth degree, with a forfeiture
specification as to counts one through seven ($872.00 in cash); Count 8, engaging in a
pattern of corrupt activity, in violation of R.C. 2923.32(A)(1), a felony of the first degree.
Licking County, Case No. 14-CA-31 3
{¶4} On January 5, 2009, appellee moved to dismiss Counts 6, 7, and 8 and
appellant entered pleas of no contest to Counts 1 through 5. After a presentence
investigation, appellant was sentenced to an aggregate prison term of 18 years,
including consecutive terms as follows: four years on Count 1, four years on Court 2,
five years on Count 3, four years on Count 4, and one year on Count 5.
{¶5} On February 9, 2009, appellant filed an untimely notice of direct appeal,
which we treated as a delayed appeal. Appellant challenged the manifest weight of the
evidence, asserted a Crim.R. 11 violation, and specifically challenged his sentence on
the basis that the possession offense (Count 5) was an allied offense of similar import to
the trafficking charges of Counts 1 through 4. We overruled the three assignments of
error and affirmed appellant’s convictions in State v. Deresse, 5th Dist. Licking No. 09
CA 11, 2009-Ohio-6725. A motion for delayed appeal to the Ohio Supreme Court was
denied in State v. Deresse, 125 Ohio St.3d 1446 (2010).
{¶6} Appellant filed a petition for postconviction relief in the trial court on
October 7, 2009, which was overruled.
{¶7} On January 27, 2014, appellant filed a “Defendant Leave Motion to
Correct a Void Sentence pursuant to R.C. 2941.25/Motion for Hearing” arguing his
convictions were allied offenses of similar import which should have merged for
sentencing pursuant to the decision of the Ohio Supreme Court in State v. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
{¶8} The trial court overruled appellant’s motion in a Judgment Entry filed April
1, 2014, finding the issues raised by appellant are res judicata. Appellant now appeals
from the trial court’s entry.
Licking County, Case No. 14-CA-31 4
{¶9} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN THE
COURT FAIL TO CONDUCT A HEARING PRIOR TO SENTENCING THE
DEFENDANT TO DETERMINE WHETHER COUT 1-5 RAISED IN THE INDICTMENT
ARE ALLIED OFFENSES OF SIMILAR IMPORT FOR THE PURPOSE OF R.C.
2941.25(A)(B) VIOLATION OF THE DEFENDANT UNITED STATES
CONSTITUTIONAL RIGHTS AMENDMENTS 5, 6, AND 14 (sic throughout).”
{¶11} “II. THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION TO
IMPOSE A PRISON TERM UPON THE DEFENDANT UNDER COUNT 1 AND 2 THAT
RENDERED THE TRIAL COURT SENTENCE VOID VIOLATION OF DEFENDANT
UNITED STATES CONSTITUTIONAL RIGHTS AMENDMENTS 5, 6, AND 14 (sic
throughout).”
ANALYSIS
I.
{¶12} In his first assignment of error, appellant argues the trial court was
required to conduct a hearing pursuant to R.C. 2941.25 to determine whether the
offenses he was convicted of should merge for sentencing purposes. We disagree.
{¶13} Appellant had a prior opportunity to litigate the allied-offenses claims he
sets forth in the instant appeal via a timely direct appeal from the sentencing hearing
and resulting judgment entry. In fact, in this case, appellant did make an allied-offenses
argument in his direct appeal which we overruled on the authority of State v. Cabrales,
118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181. State v. Deresse, 5th Dist.
Licking County, Case No. 14-CA-31 5
Licking No. 09 CA 11, 2009-Ohio-6725, at ¶ 33. Cabrales has subsequently been
overruled by State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
upon which appellant based his argument to the trial court in his Motion of January 27,
2014.
{¶14} Appellant’s new argument here is barred under the doctrine of res
judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry
court explained the doctrine as follows:
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 which resulted in that
judgment of conviction or on an appeal from that judgment.
State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
{¶15} Moreover, appellant’s arguments fail substantively. While appellant’s
argument here does not specifically cite the Ohio Supreme Court’s most recent
pronouncement on allied offenses, he relies upon its rationale and relied upon Johnson
extensively in his argument to the trial court. State v. Johnson, supra. Johnson does
not apply retroactively. State v. Holliday, 5th Dist. Delaware No. 11CAA1101104, 2012-
Ohio-2376, ¶ 16, citing State v. Parson, 2nd Dist. Montgomery No. 24641, 2012–Ohio–
730. The new judicial ruling may not be applied retroactively to a conviction that has
become final, i.e., where the accused has exhausted all of his appellate remedies. Id.,citing Ali v. State, 104 Ohio St.3d 328, 2004–Ohio–6592. See also, State v. Hill, 5th
Licking County, Case No. 14-CA-31 6
Dist. Muskingum No. CT11-0020, 2011-Ohio-3644, appeal not allowed, 130 Ohio St.3d
1439, 2011-Ohio-5883, 957 N.E.2d 301; State v. Pearson, 5th Dist. Licking No. 13-CA-
59, 2013-Ohio-5690.
{¶16} We find appellant’s first assignment of error to be barred by res judicata
and the finality of appellate judgments. Appellant’s first assignment of error is therefore
overruled.
II.
{¶17} In his second assignment of error, appellant argues the trial court lacked
subject-matter jurisdiction to convict and sentence him on Counts 1 and 2 because the
indictment does not contain a statement he possessed the crack cocaine he trafficked in
those counts. We disagree.
{¶18} “‘Jurisdiction’ means the courts' statutory or constitutional power to
adjudicate the case.” (Internal quotations and citations omitted.) Pratts v. Hurley, 102
Ohio St.3d 81, 2004–Ohio–1980, ¶ 11. If the trial court lacks subject-matter jurisdiction
its judgment is void. Id. at ¶ 12. While appellant did not raise an argument of subject
matter jurisdiction before the trial court, “* * * subject-matter jurisdiction goes to the
power of the court to adjudicate the merits of a case, it can never be waived and may be
challenged at any time.” Id. at ¶ 11.
{¶19} Pursuant to R.C. 2931.03, the court of common pleas has subject matter
jurisdiction of criminal cases. State v. Mitchell, 5th Dist. Guernsey No. 07–CA–17,
2008–Ohio–101, ¶ 32. A common pleas court has original jurisdiction in felony cases
and its jurisdiction is invoked by the return of an indictment. Click v. Eckle, 174 Ohio St.
88, 89, 186 N.E.2d 731 (1962). The indictment in the instant case charged appellant
Licking County, Case No. 14-CA-31 7
with several felonies alleged to have occurred in Licking County, Ohio. The Licking
County Court of Common Pleas therefore had subject-matter jurisdiction over
appellant's case. See, State v. Poissant, 5th Dist. Fairfield No. 08 CA 7, 2009–Ohio–
4235, ¶ 20, appeal not allowed, 123 Ohio St.3d 1510, 917 N.E.2d 812, 2009–Ohio–
6210, and State v. Wilson, 5th Dist. Richland No. 14CA16, 2014-Ohio-3286.
{¶20} Appellant’s argument may be based upon confusion over which elements
are required for which subsection of the trafficking statute, as appellee posits. We can
only determine, however, that the Licking County Court of Common Pleas did have
subject matter jurisdiction over Counts 1 and 2.
{¶21} Appellant’s second assignment of error is overruled.
CONCLUSION
{¶22} Appellant’s two assignments of error are overruled and the judgment of
the Licking County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.