State v. Bryan , 2018 Ohio 2508 ( 2018 )

[Cite as State v. Bryan, 2018-Ohio-2508.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2017-0053
MICHAEL BRYAN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2016-0234
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 21, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX ERIC ALLEN
Prosecuting Attorney 4605 Morse Rd., Suite 201
GERALD V. ANDERSON, II Gahanna, OH 43230
Assistant Prosecuting Attorney
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0053 2
Hoffman, J.
{¶1} Appellant Michael Bryan appeals the judgment entered by the Muskingum
County Common Pleas Court resentencing him to an aggregate term of ten years
incarceration for five counts of trafficking in drugs. Appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} Appellant was involved in multiple drug transactions with a confidential
informant working with the Central Ohio Drug Enforcement Task Force between
November 16, 2015, and April 6, 2016, culminating in a raid of his residence on April 7,
2016.
{¶3} Appellant was indicted on one count of trafficking drugs (cocaine) and four
counts of trafficking drugs (methamphetamine) in violation of R.C. 2925.03(A)(1). Two of
these offenses were elevated due to school vicinity specifications. On September 21,
2016, appellant pled guilty to the five counts of trafficking in drugs and appellee dismissed
the two school specifications. There was no joint recommendation as to Appellant's
sentence. Appellant waived a pre-sentence investigation and the trial court sentenced
Appellant following the plea hearing. Appellant signed a plea of guilty on September 21,
2016, acknowledging even if consecutive sentences were not mandatory, they may be
imposed by the court, and further, Appellee would be recommending an aggregate ten
year sentence.
{¶4} At the sentencing hearing, Appellant requested an aggregate four year
sentence, while Appellee requested an aggregate ten year sentence. Appellee argued
1 A rendition of the facts is unnecessary for our resolution of this appeal.
Muskingum County, Case No. CT2017-0053 3
Appellant's pattern of conduct was such that no single sentence would adequately punish
him or protect the public.
{¶5} The trial court stated at the sentencing hearing, “after reviewing the
defendant's record, considering the seriousness and recidivism factors, and the purposes
and principles statutes, this Court finds that it would demean the seriousness of the
offense and not adequately protect the public to place the defendant on community
control.” The trial court then found a sentence of twenty-four months on each count was
appropriate. The trial court continued, “said sentences shall be served consecutive to
each other as not to demean the seriousness of the offenses and to protect the public, as
concurrent sentences would not adequately address the crimes committed herein.”
{¶6} The trial court issued a judgment entry of conviction on October 21, 2016.
As to consecutive sentences, the judgment entry stated the “periods of incarceration
imposed herein shall be served consecutive to one another for an aggregate prison
sentence of ten (10) years.” Appellant filed an appeal to this Court, arguing the trial court
erred in imposing consecutive sentences without finding any of the three factors set forth
in R.C. 2929.14(C)(4) applied. We agreed, and reversed and remanded for resentencing.
State v. Bryan, 5th Dist. Muskingum No. CT2016-0056, 2017-Ohio-1532.
{¶7} On remand, the court imposed the same sentence, finding at least two of
the offenses were committed as part of one or more courses of conduct and the harm
caused by two or more of the multiple offenses was so great or unusual that no single
prison term adequately reflects the seriousness of his conduct, and his history of criminal
conduct demonstrates consecutive sentences are necessary to protect the public from
Muskingum County, Case No. CT2017-0053 4
future crime by Appellant. R.C. 2929.14(C)(4) (b) and (c). It is from the June 9, 2017
judgment of sentencing Appellant prosecutes his appeal, assigning as error:
“THE RECORD IN THIS MATTER DOES NOT SUPPORT THE
IMPOSITION OF CONSECUTIVE SENTENCES PURSUANT TO STATE
LAW R.C. 2929.14.”
{¶8} Although couched as a challenge to the imposition of consecutive
sentences pursuant to R.C. 2929.14, Appellant argues the offenses are allied offenses of
similar import, and should merge pursuant to R.C. 2941.25(A). Appellant failed to raise
this issue on direct appeal. The doctrine of res judicata bars a convicted defendant who
was represented by counsel from raising and litigating in any proceeding except an
appeal from that judgment, any issue which was raised or could have been raised on
direct appeal. E.g., State v. Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104, 106 (1967).
Because Appellant, who was represented by counsel, failed to raise this issue on direct
appeal, it is now barred by res judicata.
{¶9} The assignment of error is overruled.
Muskingum County, Case No. CT2017-0053 5
{¶10} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Wise, John, P.J. and
Baldwin, J. concur