State v. Elias , 2013 Ohio 5254 ( 2013 )

[Cite as State v. Elias, 2013-Ohio-5254.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99739
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN ELIAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-481766
BEFORE: Stewart, A.J., Blackmon, J., and McCormack, J.
RELEASED AND JOURNALIZED: November 27, 2013
FOR APPELLANT
John Elias, Pro Se
Inmate No. 512-026
Richland Correctional Institution
P.O. Box 8107
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.
11.1 and Loc.R.11.1. In 2008, defendant-appellant John Elias pleaded no contest to
charges of burglary and intimidation. The court sentenced him to five years of
community control and advised him that a violation of the terms of community control
could result in a prison term of nine years. In May 2009, the court found that Elias
violated community control. It ordered Elias to serve a nine-year sentence and placed
him on five years of postrelease control. We dismissed his direct appeal for failure to
timely file that appeal. See State v. Elias, 8th Dist. Cuyahoga No. 93325, Motion No.
422877 (June 10, 2009). We then denied Elias’s request to file a delayed appeal. See
State v. Elias, 8th Dist. Cuyahoga No. 93686, Motion No. 424675 (Aug. 31, 2009).
Elias then filed a number of substantive motions with the trial court: a motion to vacate
his sentence; a motion for resentencing; and a motion for a “review hearing” on the
community control violation. The court denied only the motion for a review hearing.
Elias appeals from that order.
{¶2} Elias sought a review hearing on grounds that the court failed to hold the
requisite preliminary hearing before revoking his community control sanction in May
2009 — in essence, he wished to relitigate the community control revocation proceedings.
Elias could have raised any issues related to the revocation proceedings on direct appeal
in 2009 had he perfected his appeal. They are thus res judicata and cannot be raised in a
subsequent proceeding. See State v. Allbaugh, 4th Dist. Athens No. 12CA23,
2013-Ohio-2031, ¶ 18. The court did not err by denying the motion for a review
hearing.
{¶3} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga
County Court of Common Pleas to carry this judgment into execution. A certified
copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
Appellate Procedure.
MELODY J. STEWART, ADMINISTRATIVE JUDGE
PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR