State v. Schiefer , 2016 Ohio 8180 ( 2016 )

[Cite as State v. Schiefer, 2016-Ohio-8180.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Patricia A. Delaney, J.
-vs-
DANIEL SCHIEFER Case No. 16-CA-53
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 14 CR 557
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 8, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT DANIEL SCHIEFER, PRO SE
Licking County Prosecutor's Office #709-756
20 S. Second St. N.C.C.C.
Newark, Ohio 43055 P.O. Box 1812
Marion, Ohio 43301
Licking County, Case No. 16-CA-53 2
Hoffman, J.
{¶1} Defendant-appellant Daniel Schiefer appeals the July 5, 2016 Judgment
Entry entered by the Licking County Court of Common Pleas denying his motion for
resentencing. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On February 13, 2015 Appellant entered a plea of guilty to one count of
burglary and was sentenced to two years in prison, the term to run consecutively to
Appellant’s four year sentence in Knox County Court of Common Pleas on counts of
burglary and safe cracking. Appellant did not file a direct appeal from his convictions and
sentence.
{¶3} On May 2, 2016, Appellant filed a motion for resentencing. The trial court,
via Judgment Entry of July 5, 2016, denied Appellant’s motion.
{¶4} Appellant appeals, assigning as error,
{¶5} I. TRIAL COURT ERRED WHEN IT FAILED TO MAKE REQUIRED
STATUTORY FINDINGS UNDER 2929.14(C)(4) ON THE RECORD AND JOURNAL
ENTRY BEFORE SENTENCING MR. SCHIEFER TO CONSECUTIVE SENTENCES.
{¶6} II. THE TRIAL COURT ERRED WHEN IT FAILED TO FIND INEFFECTIVE
ASSISTANCE OF MR. SCHIEFER’S COUNSEL FOR COUNSEL’S FAILURE TO
CONSULT WITH HIM AFTER NOTIFYING COUNSEL HE WISHED TO APPEAL HIS
SENTENCE VIOLATING HIS 6TH AMENDMENT CONSTITUTIONAL RIGHTS.
1
A full rendition of the underlying facts is unnecessary for resolution of this appeal.
Licking County, Case No. 16-CA-53 3
{¶7} Preliminarily, we note this case comes to us on the accelerated calendar.
App.R. 11.1, which governs accelerated calendar cases, provides in pertinent part the
following:
(E) Determination and judgment on appeal
The appeal will be determined as provided by App. R. 11.1. It shall
be sufficient compliance with App. R. 12(A) for the statement of the reason
for the court's decision as to each error to be in brief and conclusionary
form.
The decision may be by judgment entry in which case it will not be
published in any form.
{¶8} One of the important purposes of the accelerated calendar is to enable an
appellate court to render a brief and conclusory decision more quickly than in a case on
the regular calendar where the briefs, facts, and legal issues are more complicated.
Crawford v. Eastland Shopping Mall Association, 11 Ohio App.3d 158 (10th Dist.1983).
{¶9} This appeal shall be considered in accordance with the aforementioned
rules.
I.
{¶10} Appellant maintains the trial court failed to make the necessary statutory
findings required for the imposition of consecutive sentences at the sentencing hearing
and in his judgment entry of sentence.
Licking County, Case No. 16-CA-53 4
{¶11} As set forth above, Appellant did not file a direct appeal from his conviction
and sentence herein.
{¶12} Under the doctrine of res judicata, a final judgment of conviction bars the
defendant from raising and litigating in any proceeding, except an appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised or
could have raised at the trial which resulted in that judgment of conviction or on appeal
from that judgment. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Res
judicata also implicitly prohibits a defendant from “re-packaging” evidence or issues that
either were, or could have been, raised in the context of the petitioner's trial or direct
appeal. State v. Lawson, 103 Ohio App.3d 307, 315, 659 N.E.2d 362(12th Dist.1995).
{¶13} Appellant’s claim the trial court erred in imposing consecutive sentences
could have been raised in a direct appeal from his sentence. State v. Wolfe, Delaware
No. 16CAA020008, 2016-Ohio-4616; See State v. Adams, 10th Dist. No. 14AP–623,
2015–Ohio–868, ¶ 8 (defendant's claim that the trial court erred by failing to make the
findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences could
have been raised in his direct appeal, and thus “any further review of defendant's
sentence is barred by res judicata”); State v. Petitto, 8th Dist. No. 99893, 2013–Ohio–
5435, ¶ 13 (defendant's claim that the trial court imposed consecutive sentences without
making appropriate findings “could have and should have been raised in a timely filed
appeal” from trial court's sentencing entry, and therefore “this claim is now barred by the
doctrine of res judicata”); State v. Ferrell, 5th Dist. No.2013CA00121, 2013–Ohio–5521,
¶ 15 (“Appellant either raised or could have raised arguments regarding the
appropriateness of consecutive sentences * * * during his direct appeal.)
Licking County, Case No. 16-CA-53 5
{¶14} The Ohio Supreme Court has declined to find sentences void based on the
court's failure to comply with certain sentencing statutes, including the consecutive
sentencing statute. State v. Sanders, 9th Dist. Summit No. 27189, 2014–Ohio–5115, ¶ 5,
citing State v. Holdcroft, 137 Ohio St.3d 526, 2013–Ohio–5014, ¶ 8 (noting that
challenges to a sentencing court's judgment as to whether sentences must be served
concurrently or consecutively must be presented in a timely direct appeal). Thus, because
the trial court's “alleged failure to comply with the consecutive sentencing statute does
not render [the] sentence void, res judicata applies.” Id. at ¶ 6. Accord, State v. Bowshier,
2nd Dist. Clark No.2015–CA–53, 2016–Ohio–1416, ¶ 16; State v. Hall, 9th Dist. Summit
No. 27942, 2016–Ohio–909, ¶ 7; State v. Chapin, 10th Dist. Franklin No. 14AP–1003,
2015–Ohio–3013, ¶ 8.
{¶15} We find Appellant’s argument in the first assignment of error concerning the
trial court’s alleged failure to make the statutory findings prior to imposing consecutive
sentences is barred by the doctrine of res judicata.
II.
{¶16} Appellant further asserts the trial court erred in denying his motion for
resentencing as he was denied the effective of assistance of counsel for counsel’s failure
to file a direct appeal or to consult with him regarding a direct appeal.
{¶17} We find Appellant’s motion for resentencing is not the proper procedural
mechanism to raise an ineffective assistance of counsel argument of failure to file a direct
appeal.
{¶18} Accordingly, Appellant’s second assignment of error is overruled.
Licking County, Case No. 16-CA-53 6
{¶19} The July 5, 2016 Judgment Entry of the Licking County Court of Common
Pleas is affirmed.
By: Hoffman, J.
Farmer, P.J. and
Delaney, J. concur