State v. Dover , 2012 Ohio 1181 ( 2012 )

[Cite as State v. Dover, 2012-Ohio-1181.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2011CA00193
:
:
COURTNEY A. DOVER : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2007-CR-0153
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO COURTNEY A. DOVER, pro se
Prosecuting Attorney Inmate No. 5247-192
Stark County, Ohio Grafton Correctional Institution
2500 S. Avon-Beldon Road
BY: KATHLEEN O. TATARSKY Grafton, Ohio 44044
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South
Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Dover, 2012-Ohio-1181.]
Edwards, J.
{¶1} Defendant-appellant, Courtney Dover, appeals from the August 18, 2011,
Judgment Entry of the Stark County Court of Common Pleas denying his Motion to
Correct an Illegal Sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 20, 2007, the Stark County Grand Jury indicted appellant on
one count of felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2),a felony of
the second degree, one count of improperly handling firearms in a motor vehicle in
violation of R.C. 2923.16(B), a felony of the fourth degree, and one count of
endangering children in violation of R.C. 2919.22(A), a misdemeanor of the first degree.
The charge of felonious assault was accompanied by a fireman specification. At his
arraignment on February 23, 2007, appellant entered pleas of not guilty to the charges.
{¶3} Subsequently, a jury trial commenced on April 10, 2007. At the conclusion
of the evidence and the end of deliberations, the jury, on April 11, 2007, found appellant
guilty of all charges. As memorialized in a Judgment Entry filed on April 18, 2007,
appellant was sentenced to an aggregate sentence of ten (10) years in prison.
{¶4} Appellant appealed his conviction and sentence. Pursuant to an Opinion
filed in State v. Dover, 5th Dist. No. 2007-CA-00140, 2008-Ohio-1071, this Court
affirmed appellant’s conviction and sentence.
{¶5} On May 23, 2011, appellant filed a Motion to Correct an Unlawful
Sentence, arguing that the charges of improperly handling firearms in a motor vehicle
and endangering children were allied offenses and “thus Subject to Merger in the
Stark County App. Case No. 2011CA00193 3
prosecution arising out of the Defendant’s felonious assault on the victim.” The motion
was denied via a Judgment Entry filed on June 9, 2011.
{¶6} Thereafter, on August 15, 2011, appellant filed a Motion to Correct Illegal
Sentence, arguing that the verdict form for felonious assault failed to conform to the
mandates set forth on State v. Pelfrey, 112 Ohio St.3d 422, 2007–Ohio–256, 860
N.E.2d 735. The trial court, as memorialized in a Judgment Entry filed on August 18,
2011, denied appellant’s motion. The trial court, in its Judgment Entry, held that even if
it were to construe appellant’s motion as a Petition for Post Conviction Relief, the same
was not timely filed and also that the arguments raised in appellant’s motion were not
raised on direct appeal.
{¶7} Appellant now raises the following assignment of error on appeal:
{¶8} “I. THE TRIAL COURT ERRED IN ENTERING A CONVICTION OF A
SECOND DEGREE FELONY AND IMPOSING A SENTENCE THAT IS NOT IN
ACCORDANCE WITH OHIO REVISED CODE 2945.75.(A)(2).
{¶9} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DENIED MR. DOVER’S MOTION TO CORRECT AN ILLEGAL SENTENCE FOR
LACK OF MERITS AND DECLARING THE MOTION TO BE A POST CONVICTION
MOTION WHICH WAS UNTIMELY FILED.”
I
{¶10} Appellant, in his first assignment of error, argues that the trial court erred
in denying his Motion to Correct an Illegal Sentence because the verdict form in his
case did not comply with R.C. 2945.75(A)(2).
{¶11} R.C. 2945.75 provides, in relevant part, as follows:
Stark County App. Case No. 2011CA00193 4
{¶12} “(A) When the presence of one or more additional elements makes an
offense one of more serious degree:…
{¶13} “(2) A guilty verdict shall state either the degree of the offense of which the
offender is found guilty, or that such additional element or elements are present.
Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the
offense charged.”
{¶14} The Supreme Court of Ohio has interpreted this statute to provide the
requirements for what must be included in a jury verdict form. State v. Pelfrey, 112 Ohio
St.3d 422, 2007–Ohio–256, 860 N.E.2d 735, ¶ 14. The Pelfrey Court held that “pursuant
to the clear language of R.C. 2945.75, a verdict form signed by a jury must include
either the degree of the offense of which the defendant is convicted or a statement that
an aggravating element has been found to justify convicting a defendant of a greater
degree of a criminal offense.” Id. See also, State v. Nethers, 5th Dist. No. 07 CA 78,
2008–Ohio–2679, ¶ 51.
{¶15} In Pelfrey, after the jury found him guilty, the appellant was sentenced on
the third-degree felony conviction to serve four years in prison. The Second District
Court of Appeals affirmed Pelfrey's conviction, rejecting a manifest-weight-of-the-
evidence argument. State v. Pelfrey, 2nd Dist. No. 19955, 2004–Ohio–3401 (June 25,
2004). The court of appeals subsequently granted Pelfrey's application to reopen the
appeal under App.R. 26(B). Pelfrey argued that the trial court had erred in entering a
conviction of a third-degree felony because the verdict form and the trial court's
subsequent verdict entry were inadequate to support a conviction of tampering with
Stark County App. Case No. 2011CA00193 5
government records. Instead, Pelfrey argued that he could have been convicted only of
the misdemeanor offense of tampering with records. See R.C. 2913.42(B)(2).
{¶16} The Second District Court of Appeals agreed with Pelfrey's argument and
stated, “‘Pelfrey's failure to raise this defect at trial did not waive it, and the fact that the
indictment and jury instructions addressed the government-records issue did not cure
the non-compliance with R.C. 2945.75(A)(2).’” State v. Pelfrey, 2nd Dist. No. 19955,
2005–Ohio–5006, ¶ 23, quoting State v. Woullard, 158 Ohio App .3d 31, 2004–Ohio–
3395, ¶ 23.(Emphasis added). The court of appeals held that “the trial court was
required to enter a conviction for first-degree misdemeanor tampering with records,
which is the least degree of the offense under R.C. § 2913.42.” Id. The Ohio Supreme
Court, in Pelfrey, agreed that he did not waive the error by failing to raise it in the trial
court.
{¶17} “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 * * * 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 any appeal from that judgment.” State v. Svefcyk, 77 Ohio St.3d 93,
671 N.E.2d 233 (1996), syllabus.
{¶18} In the case sub judice, appellant did not seek to present his arguments as
a timely direct appeal; rather he filed a Motion to Correct an Illegal Sentence
subsequent to the time when he could have raised the issue in a direct appeal. We find
no reason to override the general rule in Ohio that a trial court has no authority to
reconsider a valid final judgment in a criminal case. State v. Brown, 5th District No. 09–
Stark County App. Case No. 2011CA00193 6
CA–137, 2010–Ohio–2757, ¶ 19, citing State v. Moore, 4th Dist. No. 03CA18, 2004–
Ohio–3977.
{¶19} As this Court has previously noted, Pelfrey applies only in a procedural
posture of a direct appeal. State v. Branco, 5th Dist. No. 2010–CA–00098, 2010–Ohio–
3856, ¶ 14; State v. Brown, 5th Dist. No. 09–CA–137, 2010–Ohio–2757, ¶ 17. In the
case at bar, appellant could have, but did not, raise this issue on direct appeal.
Appellant had the opportunity to raise this issue on direct appeal, but, unlike the
defendant in Pelfrey, he failed to do so. The doctrine of res judicata bars appellant from
raising this issue anew via a motion to vacate a sentence. State v. Foy, 5th Dist.
No.2009–CA–00239, 2010–Ohio–2445, ¶ 8. See also State v. Miller, 5th Dist. No. 2011–
CA–00074, 2011-Ohio-3039.
{¶20} Because appellant could have raised this claim on direct appeal, we find
that the doctrine of res judicata is applicable and that the trial court did not err in
denying his Motion to Correct Illegal Sentence.
{¶21} Appellant’s first assignment of error is, therefore, overruled.
II
{¶22} Appellant, in his second assignment of error, argues that the trial court
erred in finding that his Motion to Correct Illegal Sentence was an untimely filed Petition
for Post Conviction Relief.
Stark County App. Case No. 2011CA00193 7
{¶23} Based on our disposition of appellant’s first assignment of error,
appellant’s second assignment of error is moot.
{¶24} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/d1215
[Cite as State v. Dover, 2012-Ohio-1181.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
COURTNEY A. DOVER :
:
Defendant-Appellant : CASE NO. 2011CA00193
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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_________________________________
_________________________________
JUDGES