State v. Mitchell

[Cite as State v. Mitchell, 2017-Ohio-9103.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0053
- vs - :
ROBERT MITCHELL, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2015 CR
00518.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, 160 High Street, N.W., Warren, OH 44481 (For
Plaintiff-Appellee).
Robert Mitchell, pro se, PID# A582-305, Trumbull Correctional Institution, P.O. Box
901, 5701 Burnett Road, Leavittsburg, OH 44430 (Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Robert Mitchell, appeals from the judgment of the
Trumbull County Court of Common Pleas, denying his Motion to Correct a Sentence.
The issue to be determined by this court is whether an offender is barred by res judicata
from raising errors regarding the imposition of consecutive sentences in postconviction
proceedings. For the following reasons, we affirm the judgment of the lower court.
{¶2} On July 1, 2015, Mitchell was indicted by the Trumbull County Grand Jury
on Possession of Heroin, a felony of the fifth degree, in violation of R.C. 2925.11(A) and
(C)(6)(a).
{¶3} A Finding on Guilty Plea to the Indictment was filed on October 27, 2015.
Pursuant to this document, Mitchell agreed to enter a plea to the charge as contained in
the Indictment. It also provided that “[t]he underlying agreement upon which this plea is
based is as follows: Defendant waives a PSI. The State and Defendant agree to a
jointly recommended prison sentence of 6 months, said sentence to be served
consecutively to the prison sentence the Defendant is currently serving, Cuyahoga
County Common Pleas Court, Case No. CR-09-526685-A.”
{¶4} On November 2, 2015, an Entry of Sentence was filed, in which the court
noted that it considered the record, as well as the purposes and principles of felony
sentencing in R.C. 2929.11 and the factors in R.C. 2929.12. It found that a consecutive
sentence was “necessary to protect the public from future crime or to punish the
offender; [and] that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public.” The court
sentenced Mitchell to a term of six months in prison, to run consecutively with his prison
term in the aforementioned Cuyahoga case. Mitchell did not appeal.
{¶5} On April 28, 2017, Mitchell filed a Motion to Correct a Sentence that is
Contrary to Law, arguing that the trial court failed to make necessary consecutive
sentencing findings.
{¶6} The trial court issued a Judgment Entry on May 10, 2017, finding that it
had made consecutive sentencing findings.
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{¶7} Mitchell timely appeals and raises the following assignments of error:
{¶8} “[1.] The trial court erred [in] fail[ing] to make the required findings under
R.C. 2929.14(C)(4) prior to imposing consecutive sentences on Appellant, in violation of
his Due Process protections under the Fourteenth Amendment to the U.S. Constitution
and Article I, Section [] 10 of the Ohio Constitution.
{¶9} “[2.] The trial court erred in denying Appellant’s Motion to Correct a
Sentence that is Contrary to Law, in violation of his Due Process protections under the
Fourteenth Amendment to the U.S. Constitution and Article I, Section [] 10 of the Ohio
Constitution.”
{¶10} Consideration of Mitchell’s argument on appeal is barred by his failure to
file a direct appeal from the November 2, 2015 Entry of Sentence and the doctrine of
res judicata.
{¶11} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel 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, 226 N.E.2d 104 (1967), paragraph nine of the
syllabus.
{¶12} “Arguments challenging the imposition of a sentence that is voidable are
barred by the doctrine of res judicata if not raised on direct appeal.” State v. Britta, 11th
Dist. Lake No. 2011-L-041, 2011-Ohio-6096, ¶ 17; State v. Krisha, 11th Dist. Lake Nos.
2015-L-125, et al., 2016-Ohio-3512, ¶ 20. “Errors in the imposition of consecutive
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sentences, such as the failure to make the required statutory findings, render the
sentences voidable, rather than void.” Krisha at ¶ 21, citing State v. Wilson, 11th Dist.
Lake No. 2015-L-067, 2015-Ohio-5465, ¶ 19; State v. Bowshier, 2d Dist. Clark No.
2015-CA-53, 2016-Ohio-1416, ¶ 16 (“the Supreme Court of Ohio ‘has declined to find
sentences void based on the court’s failure to comply with certain sentencing statutes,
including the consecutive sentencing statute’”) (citation omitted).
{¶13} As the Ohio Supreme Court has explained, challenges to a sentencing
court’s determination “as to whether sentences must be served concurrently or
consecutively” must be “presented in a timely direct appeal.” State v. Holdcroft, 137
Ohio St. 3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8. Mitchell failed to file a direct
appeal in this matter and did not attempt to challenge his consecutive sentence until
well over a year after sentencing.
{¶14} Even if this matter was not barred by res judicata, the Ohio Supreme
Court has also made it clear that, in the case of a jointly recommended, nonmandatory
consecutive sentence, “a trial court is not required to make the consecutive-sentence
findings set out in R.C. 2929.14(C)(4).” State v. Sergent, 148 Ohio St. 3d 94, 2016-
Ohio-2696, 69 N.E.3d 627, ¶ 43. “[W]hen a trial judge imposes such an agreed
sentence without making those findings,” the sentence is “not reviewable on appeal”
pursuant to R.C. 2953.08(D)(1), which allows only limited appeals in the case of jointly
recommended sentences. Id. Here, the plea agreement clearly states that the parties
agreed to a six-month sentence, to run consecutively with the Cuyahoga term already
being served by Mitchell. This was the term to which Mitchell was sentenced.
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{¶15} As such, we find no grounds to review the merits of Mitchell’s claim that
the trial court failed to make certain consecutive sentencing findings.
{¶16} The first and second assignments of error are without merit.
{¶17} For the foregoing reasons, the judgment of the Trumbull County Court of
Common Pleas, denying Mitchell’s Motion to Correct a Sentence, is affirmed. Costs to
be taxed against appellant.
CYNTHIA WESTCOTT RICE, P.J.,
COLLEEN MARY O’TOOLE, J.,
concur.
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