State v. Cunningham

[Cite as State v. Cunningham, 2023-Ohio-1986.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
No. 23AP-12
Plaintiff-Appellee, : (C.P.C. No. 99CR-3468)
v. : (ACCELERATED CALENDAR)
Anthony J. Cunningham, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 15, 2023
On brief: Janet A. Grubb, First Assistant Prosecuting
Attorney, and Seth L. Gilbert, for appellee.
On brief: Anthony J. Cunningham, pro se.
APPEAL from Franklin County Court of Common Pleas
MENTEL, J.
{¶ 1} Defendant-appellant, Anthony J. Cunningham, pro se, appeals from a
December 14, 2022 entry denying his August 30, 2022 petition to remove his sexual-
predator classification and an October 3, 2022 “motion to enforce stipulated agreement or
set for trial.”
{¶ 2} For the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶ 3} On June 30, 1999, a Franklin County Grand Jury indicted appellant on four
counts of rape in violation of R.C. 2907.02, felonies of the first degree (Count One to Count
Four); one count of kidnapping in violation of R.C. 2905.01, a felony of the first degree
(Count Five); and two counts of gross sexual imposition in violation of R.C. 2907.05,
No. 23AP-12 2
felonies of the third degree (Counts Six and Seven). Each rape count in the indictment
included a sexually violent predator specification. The charges alleged in the indictment
originated out of separate incidents of sexual abuse between appellant and his neighbor, an
eleven-year-old girl, from January 1, 1999 to February 28, 1999. The matter proceeded to
a jury trial in the fall of 1999. On October 4, 1999, a jury found appellant guilty on all counts.
On December 10, 1999, the trial court sentenced appellant to concurrent sentences of life
in prison for each rape conviction, ten years for the kidnapping conviction, and five years
for each of the gross sexual imposition convictions. The trial court also classified appellant
as a sexual predator. The trial court’s sentencing entry, however, erroneously indicated that
appellant was sentenced to ten-year sentences for the rape and kidnapping convictions. On
direct appeal, this court affirmed appellant’s convictions and his sexual-predator
classification. See State v. Cunningham, 10th Dist. No. 00AP-67, 2000 Ohio App. LEXIS
4244 (Sept. 21, 2000) (“Cunningham I”). Since Cunningham I, a series of motions and
appeals have ensued. We summarized the protracted procedural history of this case in
State v. Cunningham, 10th Dist. No. 14AP-251, 2014-Ohio-3702, ¶ 3-9 (“Cunningham V”),
as follows:
In June 2000, appellant filed a motion for new trial, which the
trial court denied.
In 2001, the State of Ohio, plaintiff-appellee, filed a motion
requesting the trial court amend its sentencing entry to change
the ten-year sentences for his rape convictions to life sentences.
The state argued the trial court imposed life sentences for his
rape convictions and was required to do so because the victim
of appellant’s offenses was under the age of 13. See R.C.
2907.02(B). On May 23, 2001, the trial court filed a corrected
judgment entry to reflect such. However, in the entry, the trial
court erroneously changed appellant’s kidnapping sentence to
a life sentence. As a result, on July 6, 2001, the trial court filed
a second corrected judgment entry that indicated appellant
received a ten-year sentence for his kidnapping conviction.
On March 6, 2002, appellant filed a motion for new trial. On
March 7, 2002, the trial court denied appellant’s motion,
finding that appellant did not state any grounds for the late
filing of his motion. We affirmed the trial court’s judgment in
State v. Cunningham, 10th Dist. No. 02AP-332, 2002-Ohio-
6841 (“Cunningham II”).
No. 23AP-12 3
In 2008, appellant filed a motion for new trial, motion for relief
from judgment, and motion for summary judgment, all of
which the trial court denied on January 27, 2009.
On February 22, 2010, appellant filed a motion to impose valid
sentences, arguing his sentencing entries were void, were not
final appealable orders, and failed to comply with Crim.R.
32(C). Specifically, appellant argued, the trial court erred in
failing to properly include post-release control in the
sentencing entries and, thus, the sentences were void. On April
16, 2010, the trial court denied appellant’s motion. We affirmed
the trial court’s judgment in State v. Cunningham, 10th Dist.
No. 10AP-452, 2011-Ohio-2045 (“Cunningham III”).
In 2011, appellant filed a motion to remove stay, remove tier
classification, and proceed with a proper classification hearing,
pursuant to R.C. 2950.09, the law in effect in 1999; and a
motion to discharge for improper use of nunc pro tunc entries
or a lawful remedy. The trial court denied both of those
motions. In State v. Cunningham, 10th Dist. No. 11AP-989,
2012-Ohio-2782 (“Cunningham IV”), we affirmed the trial
court’s judgments, finding that all of appellant’s assignments of
error addressed either his 1999 sexual predator classification
or the amended sentencing entries the trial court filed in 2001
and, thus, the issues were precluded by res judicata because he
could have raised his arguments in his previous appeals to this
court.
On December 24, 2013, appellant filed a “motion to impose
sentence that is authorized by the overriding purposes of the
felony sentencing guidelines [R.C.] 2929.14 or 2971.03 as law
in 1999 S.B. 2.” On March 5, 2014, the trial court issued a
judgment in which it denied appellant’s motion based upon res
judicata because this court and the trial court had already ruled
numerous times that appellant’s sentence was proper.
Appellant appeal[ed] the judgment of the trial court.
{¶ 4} In Cunningham V, appellant’s two assignments of error concerned the trial
court’s 2001 corrected sentencing entries. Id. at ¶ 12. We ultimately affirmed the trial
court’s decision to deny appellant’s motion finding his arguments were precluded under
the doctrine of res judicata writing:
As we noted in Cunningham IV at ¶ 8 “[a]ppellant did not file
an appeal from either of those nunc pro tunc entries nor did he
file a motion for delayed appeal in this court.” Appellant also
did not raise the present arguments in any of his previous
No. 23AP-12 4
appeals to this court that related to the corrected sentencing
entries. Appellant previously challenged the corrected
sentencing entries in his 2010 motion to impose a valid
sentence, but he failed to raise the present arguments in that
motion. On appeal of the trial court’s denial of that motion, in
Cunningham III, we rejected appellant’s arguments regarding
the corrected sentencing entries. Likewise, in Cunningham IV,
appellant challenged the trial court’s use of the 2001 corrected
sentencing entries, but he never raised the arguments
presented in the current appeal. We rejected appellant’s
challenge to the 2001 corrected sentencing entries in
Cunningham IV based upon res judicata.
Cunningham V at ¶ 12.
{¶ 5} On August 30, 2022, appellant filed a “petition for removal from
classification” with the trial court arguing that his sexual-predator classification should be
removed under former R.C. 2950.09(D)(1). On October 3, 2022, appellant filed a “motion
to enforce stipulated agreement or set for trial” arguing that the state’s decision to amend
the indictment—dismissing the sexually violent predator specifications—created a contract,
which prohibited the state from pursuing a sexual-predator classification. On
December 14, 2022, the trial court denied both motions. The trial court first concluded that
R.C. 2950.09(D)(2) has no provision that allows the removal of a sexual-predator
classification. The trial court went on to find that there is nothing in the transcript to
indicate a stipulation or contract was entered into between the parties that precluded the
state from moving forward with the sexual-predator hearing.
{¶ 6} Appellant filed an appeal on January 6, 2023.
II. ASSIGNMENTS OF ERROR
{¶ 7} Appellant assigns the following as trial court error:
[1.] Trial Court Abused its discretion by refusing to enforce
binding contract or set for trial as failure to grant either remedy
constitutes an error as a matter of law, such promise or
agreement was the inducement or consideration that denied
appellants Sixth Amendment Right to Trial by Jury and other
fundamental rights under the Sixth, Eighth and Fourteenth
Constitutional Amendments.
[2.] Trial court abused its discretion by failing to hold an
evidentiary hearing to determine if an enforceable contractual
agreement existed and/or the terms of binding contract.
No. 23AP-12 5
[3.] The trial court abused its discretion by not interrogating
defendant as to the detriment or benefit of accepting the
agreement of withdrawing the specifications so that the
agreement was understood on the record as waiving
fundamental rights. Meaning the same classification
(predator) and sentence (life) would or could be imposed
without the specification and without being tried to the jury,
Crim. R. 11 requirements.
[4.] The promise or agreement was the inducement or
consideration that caused appellants right to a jury trial
guaranteed in the Sixth and Fourteenth Amendments to the
United States Constitution, and Sections 5 & 10, Article I of the
Ohio Constitution to be indirectly waived. R.C. 2945.05. No
waiver of right to jury trial, Crim. R. 23., appellant did not plead
guilty.
(Emphasis deleted.) (Sic passim.)
III. LEGAL ANALYSIS
A. Appellant’s Assignments of Error
{¶ 8} Preliminarily, we must address whether appellant’s four assignments of error
are barred under the doctrine of res judicata.
{¶ 9} The doctrine of res judicata precludes someone from asserting a claim that
was raised, or could have been raised, in a prior proceeding. State v. Blanton, __ Ohio
St.__, 2022-Ohio-3985, ¶ 2, citing State v. Perry, 10 Ohio St.2d 175, 180 (1967). “ ‘[A]ny
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. Gamble, 10th Dist. No. 22AP-584, 2023-
Ohio-843, ¶ 6, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 16, citing
State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, ¶ 37. “Res judicata ‘promotes
principles of finality and judicial economy by preventing endless relitigation of an issue
upon which there was already a full or fair opportunity to be heard.’ ” Geico Indemn. Co. v.
August, 10th Dist. No. 22AP-423, 2023-Ohio-1196, ¶ 17, quoting State v. Jama, 10th Dist.
No. 11AP-210, 2012-Ohio-2466, ¶ 45, citing Saxon at ¶ 18.
{¶ 10} Appellant argues that the state’s request to amend the indictment, which
dismissed the sexually violent predator specifications, created a contract that precluded the
state from pursuing a sexual-predator classification at the hearing. Appellant also argues
No. 23AP-12 6
that the trial court erred in denying his motion to remove the sexual-predator designation
under R.C. 2950.09(D).
{¶ 11} Upon review, these arguments are precluded under the doctrine of res
judicata as they were either raised or could have been raised in appellant’s previous appeals
to this court. We have applied the doctrine of res judicata in appellant’s prior cases
concluding that appellant was barred from challenging issues that could have been raised
in his direct appeal. See Cunningham IV at ¶ 5-7; Cunningham V at ¶ 12 (“Therefore, we
agree with the trial court in the present case that both the trial court and this court have
already adjudicated the lawfulness of his sentence, and further review is barred by res
judicata.”). We note that appellant’s argument that the transcript constitutes newly
discovered evidence is unpersuasive as it has been available for many years and could have
been raised on direct appeal. Accordingly, any challenge to the sexual-predator
classification or sentence is barred under res judicata.
{¶ 12} Arguendo, even if we were to consider appellant’s four assignments of error,
we find the substance of appellant’s arguments without merit. Regarding appellant’s
motion to have the sexual-predator classification removed, the trial court correctly found
that former R.C. 2950.09(D)(2) has no provision for a person designated as a sexual
predator to have the classification removed.1
{¶ 13} Likewise, this court has found there is no mechanism to have a sexual-
predator designation removed or altered. State v. Johnson, 10th Dist. No. 13AP-549, 2013-
Ohio-4990, ¶ 7 (“no statutory authority exists to support the alteration of a classification as
a sexual predator in this instance”); Hamilton at ¶ 15. Appellant’s contract argument is
equally unavailing. It is apparent from the transcript that, despite amending the
indictment, the state intended to go forward with the sexual-predator hearing at a later
date, which is what happened in this case. There is nothing in the record to support
1A prior version of R.C. 2950.09 included a provision for an offender to petition a court to remove the sexual-
predator classification. The General Assembly, however, removed this mechanism with its enactment of 2003
Am.Sub.S.B. No. 5, effective July 31, 2003. State v. Hamilton, 10th Dist. No. 06AP-944, 2007-Ohio-2473,
¶ 15, citing State v. Turner, 5th Dist. No. 2004-CA-36, 2004-Ohio-6573, ¶ 9, fn. 1; State v. Shelton, 8th Dist.
No. 83289, 2004-Ohio-5484, ¶ 15. The Supreme Court of Ohio found 2003 Am.Sub.S.B. No. 5 applied
retroactively to offenses that occurred prior to the bill’s enactment. State v. Ferguson, 120 Ohio St.3d 7, 2008-
Ohio-4824, ¶ 20, superseded by statute on other grounds as stated in State v. Jarvis, 167 Ohio St.3d 118,
2021-Ohio-3712. Thus, outside limited circumstances not involved in this case, the sexual-predator
classification is permanent.
No. 23AP-12 7
appellant’s claim that the state agreed to forgo a future hearing concerning the sexual-
predator classification.
{¶ 14} Accordingly, appellant’s four assignments of error are overruled.
IV. CONCLUSION
{¶ 15} Having overruled appellant’s four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BEATTY BLUNT, P.J. and BOGGS, J., concur.
_____________