State v. Fisher , 2019 Ohio 3334 ( 2019 )

[Cite as State v. Fisher, 2019-Ohio-3334.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY
STATE OF OHIO, :
: Case No. 19CA5
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
GEORGE FISHER, :
:
Defendant-Appellant. : Released: 08/14/19
_____________________________________________________________
APPEARANCES:
George Fisher, Lancaster, Ohio, Pro Se Appellant.
Dave Yost, Ohio Attorney General, and Andrea K. Boyd, Special
Prosecutor, Assistant Ohio Attorney General, Ohio Attorney General’s
Office, Columbus, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} This is an appeal from the Jackson County Common Pleas
Court’s denial of Appellant George Fisher’s petition for post-conviction
relief under R.C. 2953.21. Appellant pleaded guilty to one count of
possession of heroin, for which the trial court sentenced him to nine years in
prison. Appellant filed a direct appeal of the trial court’s judgment, which
this Court affirmed. Appellant now contends the trial court erred in denying
his subsequent petition for post-conviction relief. Specifically, Appellant
argues the petition should have been granted because his counsel was
Jackson App. No. 19CA5 2
ineffective for failing to (1) withdraw Appellant’s plea before sentencing
and (2) move the trial court to conduct a hearing on his motion to suppress.
Because the doctrine of res judicata bars Appellant from raising these
purported constitutional violations in his motion for post-conviction relief,
we overrule his assignments of error and affirm the trial court’s judgment.
FACTS
{¶2} On January 13, 2016, Appellant was indicted for one count of
possession of heroin, a felony of the first degree, with a specification that
Appellant was a major drug offender. On March 22, 2017, Appellant, with
retained counsel, pleaded guilty to the charge pursuant to an agreement with
Appellee, the State of Ohio, to drop the major drug offender specification.
The parties did not make a joint sentencing recommendation and requested a
separate sentencing hearing.
{¶3} On May 23, 2017, the trial court held a second plea hearing, at
which the parties indicated their plea agreement contemplated a sentencing
range encompassing the sentence for a felony in the first degree, rather than
the eleven-year sentence mandated by a major drug offender specification.
Appellee also asked to amend the charge to reduce the amount of heroin
alleged to be possessed to avoid a mandatory maximum sentence. The trial
court permitted the amendment, vacated the previous plea and proceeded
Jackson App. No. 19CA5 3
with the new plea hearing. Appellant pleaded guilty to possessing heroin, a
felony of the first degree, in violation of R.C. 2925.11(A). Pursuant to the
plea agreement, the major drug offender specification was dismissed.
{¶4} The trial court then heard argument regarding sentencing.
Appellee requested the maximum sentence, while Appellant, through his
attorney, argued for a lesser sentence. Appellant chose not to speak. After
the parties concluded their arguments, the trial court sentenced Appellant to
nine years in prison.
{¶5} Appellant was granted leave to file a delayed appeal of his
sentence. This Court held oral argument and then denied the appeal on June
28, 2018. State v. Fisher, 4th Dist. Jackson No. 17CA5, 2018-Ohio-2718,
¶ 42. The Supreme Court of Ohio denied Appellant’s petition for
jurisdiction on October 24, 2018. State v. Fisher, 153 Ohio St. 3d 1505,
2018-Ohio-4285, 109 N.E.3d 1261. On November 9, 2018, Appellant filed
a pro se motion for post-conviction relief, which the trial court denied on
February 11, 2019. On March 7, 2019, Appellant timely filed this appeal of
the trial court’s decision.
Jackson App. No. 19CA5 4
ASSIGNMENTS OF ERROR
“I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO
WITHDRAW THE PETITIONER’S PLEA PRIOR TO
SENTENCING.
II. THAT TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
HAVE THE COURT CONDUCT A HEARING ON HIS MOTION
TO SUPPRESS EVIDENCE. COUNSEL FAILED TO INSIST
THAT A HEARING BE HELD ON THE MOTION TO SUPPRESS
THE EVIDENCE, AND THERE WAS NEVER A RULING BY THE
COURT.”
ASSIGNMENTS OF ERROR I AND II
{¶6} Both of Appellant’s assignments of error are based on the
contention that he received ineffective assistance of counsel. In his first
assignment of error, he argues that his trial counsel was ineffective for
failing to withdraw his plea before sentencing. In the second assignment of
error, Appellant argues that his trial counsel was ineffective for failing to
insist that the trial court hold a hearing on his pending motion to suppress.
Appellant dedicates his brief to arguing the merits of these assignments of
error. Appellee argues, in response, that Appellant’s claims are both barred
by the doctrine of res judicata and fail on their merits. Because we agree
that the doctrine of res judicata bars Appellant’s claims of ineffective
assistance of counsel, we consider his first and second assignments of error
together here.
Jackson App. No. 19CA5 5
{¶7} The Supreme Court of Ohio has held the doctrine of res judicata
applies when determining whether post-conviction relief is warranted under
R.C. 2953.21. State v. Szefcyk, 77 Ohio St. 3d 93, 671 N.E.2d 233 (1996),
syllabus; State v. Perry, 10 Ohio St. 2d 175, 226 N.E.2d 104 (1967). “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.” Perry at 176; see also Szefcyk at 96.
{¶8} Appellant’s assignments of error are based on claims of
purported ineffective assistance of counsel that could have been raised on
direct appeal from his judgment of conviction. In fact, Appellant did raise a
claim of ineffective of counsel, albeit on different grounds, on direct appeal
from his judgment of conviction. Fisher, 2018-Ohio-2718, ¶ 32. Appellant
does not argue that he could not have brought his new claims of ineffective
assistance of counsel in his direct appeal. Nor does Appellant claim to have
discovered any new evidence relevant to his plea hearing or sentencing.
Because Appellant had a full opportunity to raise his ineffective assistance
claims on direct appeal and failed to do so, the doctrine of res judicata bars
Jackson App. No. 19CA5 6
him from raising them now in a petition for post-conviction relief.
Accordingly, Appellant’s first and second assignments of error are
overruled.
{¶9} Having overruled Appellant’s assignments of error because his
claims are barred by res judicata, we affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Jackson App. No. 19CA5 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Jackson County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.