State v. Barber , 2015 Ohio 4607 ( 2015 )

[Cite as State v. Barber, 2015-Ohio-4607.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26612
:
v. : Trial Court Case Nos. 2000-CR-1272
: 2000-CR-0497
CURTIS L. BARBER :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 6th day of November, 2015.
...........
MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
CURTIS L. BARBER, Inmate No. 410-414, Marion Correctional Institution, P.O. Box 57,
Marion, Ohio 43302
Defendant-Appellant-Pro Se
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Curtis L. Barber, appeals pro se from the judgment of
the Montgomery County Court of Common Pleas overruling his combined motion for
sentencing and motion for an allied offense determination. Because the issues appealed
from are barred by the doctrine of res judicata, the judgment of the trial court will be
affirmed.
{¶ 2} In March 2001, Barber was convicted of one count of robbery in Case No.
2000 CR 497 and sentenced to five years in prison, to be served concurrently with a
sentence he received in Case No. 2000 CR 1272. In Case No. 2000 CR 1272, Barber
was convicted of aggravated robbery, felonious assault, aggravated burglary, kidnapping,
disrupting public services, and three counts of attempted aggravated murder. As a result
of his conviction, the trial court sentenced Barber to an aggregate term of 41.5 years in
prison.
{¶ 3} Barber did not file a direct appeal from the robbery conviction in Case No.
2000 CR 497; however, he did file a direct appeal in Case No. 2000 CR 1272. In that
appeal, Barber claimed the trial court improperly denied him the opportunity to present a
certain statement at trial that was made by the victim. He also argued that the prosecutor
unfairly commented on his failure to testify in his own defense. In conducting a review
under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), we found
no claim with arguable merit and affirmed Barber’s conviction and sentence in State v.
Barber, 2d Dist. Montgomery No. 18784, 2002-Ohio-7100.
{¶ 4} On October 15, 2002, Barber filed a petition for post-conviction relief in Case
No. 2000 CR 1272, requesting the trial court to vacate his sentence. The trial court
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denied Barber’s petition. Barber then filed a second petition to vacate his sentence on
May 16, 2006, which the trial court also denied. Barber then appealed. However, in
State v. Barber, 2d Dist. Montgomery No. 21837, 2007-Ohio-5649, we affirmed the trial
court’s denial of Barber’s second petition, holding that it did not meet the jurisdictional
requirements of R.C. 2953.23(A), which governs the circumstances when a trial court
may review a successive petition for post-conviction relief.
{¶ 5} Thereafter, on August 7, 2008, the trial court resentenced Barber pursuant
to R.C. 2929.191 in both Case Nos. 2000 CR 497 and 2000 CR 1272 upon discovering
that it had neglected to notify Barber that he would be subject to a mandatory period of
post-release control following his release from prison. On August 8, 2008, the trial court
filed a judgment entry of conviction and sentence in both cases, nunc pro tunc to March
5, 2001, imposing the same sentence that had originally been imposed, but correcting the
sentence to include a mandatory period of post-release control.
{¶ 6} Barber timely appealed from his resentencing in both cases. In that appeal,
Barber raised various ineffective assistance of counsel claims with respect to his
resentencing. Barber also challenged his original sentence in Case No. 2000 CR 1272,
claiming the trial court erred in failing to merge allied offenses of similar import. On
March 5, 2010, we affirmed Barber’s resentencing and overruled his allied offense claim
in State v. Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831.
{¶ 7} Following that appeal, on June 14, 2011, Barber filed a pro se motion for
resentencing in Case No. 2000 CR 1272. In support of this motion, Barber argued that
he should have been resentenced pursuant to R.C. 2941.25 and the holding in State v.
Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which had set forth a
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new standard for determining whether offenses are allied offenses of similar import. The
trial court dismissed Barber’s motion holding that Johnson did not apply retroactively to
Barber who was originally convicted and sentenced in 2001. Barber again appealed,
and we affirmed the trial court’s decision in State v. Barber, 2d Dist. Montgomery No.
24770, 2012-Ohio-2332.
{¶ 8} After his fourth appeal, on October 3, 2013, Barber filed a combined motion
for sentencing and motion for an allied offense determination in both Case Nos. 2000 CR
1272 and 2000 CR 497. In the motions, Barber argued that the trial court’s August 8,
2008 nunc pro tunc judgment entry of conviction and sentence did not properly notify him
whether post-release control was mandatory or discretionary. He also claimed that the
trial court failed to make findings required under Crim.R. 25 at the resentencing hearing.
Barber further argued that, while the trial court did merge several of his offenses at his
original sentencing, there remained allied offenses of similar import that the trial court
should have merged during resentencing. Following a memorandum in opposition from
the State, the trial court overruled Barber’s motions on grounds that his claims were
barred by the doctrine of res judicata.
{¶ 9} Barber now appeals from the trial court’s decision overruling his combined
motion for sentencing and motion for an allied offense determination. In his brief, Barber
raises three assignments of error that mirror the same three arguments raised in his
motions before the trial court.
{¶ 10} Upon review, we conclude that the trial court properly found that Barber’s
three claims are barred by res judicata. “Res judicata bars re-litigation of a matter that
was raised or could have been raised on direct appeal. * * * Otherwise, appeals could be
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filed indefinitely.” State v. Henley, 2d Dist. Montgomery No. 26604, 2015-Ohio-4113,
¶ 11, citing State v. Griffin, 138 Ohio St. 3d 108, 2013-Ohio-5481, 4 N.E.3d 989.
{¶ 11} In the present appeal, Barber’s three assignments of error each challenge
an aspect of his August 2008 resentencing. However, Barber previously filed a direct
appeal from his resentencing in Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831,
wherein this court affirmed the judgment of the trial court. Barber is now trying to raise
additional claims concerning his resentencing, claims which could have been raised in
the prior appeal. Barber is also attempting to raise an allied offense claim, a claim which
this court has previously addressed in his appeals from the August 2008 resentencing
and the trial court’s decision denying his June 2011 motion for resentencing.
Accordingly, Barber’s three claims are barred by res judicata, as they either could have
been raised or were raised in his prior appeals.
{¶ 12} Barber’s three assignments of error are overruled and the judgment of the
trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Dylan Smearcheck
Curtis L. Barber
Hon. Dennis J. Langer