State v. McCornell , 2012 Ohio 2503 ( 2012 )

[Cite as State v. McCornell, 2012-Ohio-2503.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97406
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
VOLTAIRE MCCORNELL
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-520113
BEFORE: Keough, J., Sweeney, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 7, 2012
ATTORNEY FOR APPELLANT
Nancy E. Schieman
9368 Sunrise Court
Mentor, OH 44060
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. The purpose of an accelerated appeal is to allow the
appellate court to render a brief and conclusory opinion. Crawford v. Eastland Shopping
Mall Assn., 11 Ohio App.3d 158, 463 N.E.2d 655 (10th Dist.1983); App.R. 11.1(E).
{¶2} Defendant-appellant, Voltaire McCornell, pled guilty to felonious assault,
domestic violence, two counts of endangering children, and intimidation; he was
sentenced to 13 years in prison. In his direct appeal, he only challenged his sentence.
This court affirmed, but remanded the case to the trial court for an R.C. 2929.191 hearing
to correct an error made in imposing postrelease control. State v. McCornell, 8th Dist.
No. 93274, 2010-Ohio-3086.
{¶3} On remand, the trial court properly advised McCornell and imposed the
mandatory three-year term of postrelease control.1 McCornell now asserts the following
four assignments of error in this delayed appeal:
Prior to oral argument, this court issued a limited remand for the trial court to issue a single
1
judgment entry in compliance with Crim.R. 32 and State v. Lester, 130 Ohio St.3d 303,
2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus. At oral argument, it was brought
to this court’s attention that instead of simply issuing a single judgment entry of conviction as ordered
by this court, the trial court conducted a resentencing hearing. The trial court was without
jurisdiction to conduct a re-sentencing hearing as the limited remand only gave the court jurisdiction
to issue a judgment entry of conviction in compliance with Crim.R. 32 and Lester. Nevertheless,
upon review of the single judgment entry of conviction issued by the trial court, we find that it reflects
and incorporates the judgments issued by the trial court, which were supposed to be merged into one
Assignment of error 1: Appellant’s plea is invalid because he was not given
the specific length of PRC, and the maximum penalties involved, as well as,
the notification that PRC was “mandatory” before the plea was accepted,
violating Crim.R. 11(C)(2)(a).
Assignment of error 2: The trial court incorrectly denied appellant’s verbal
motion to withdraw his plea before resentencing.
Assignment of error 3: The trial court committed “plain error” when it
sentenced and resentenced appellant for allied offenses, which violates the
double jeopardy clause & U.S.C.A. Const. Amend.5, [sic] O.R.C.
2941.25(A).
Assignment of error 4: The trial court failed to advise the appellant of his
appellate rights, including his right to counsel and the right to appeal,
thereby denying [him] due process and equal protection of the law in
violation of the Sixth and Fourteenth Amendments to the United States and
Article 4, Section 3 of the Ohio Constitution, and O.R.C. 2905.03 and
2953.02.
{¶4} We find that assignments of error one, three, and four, and the issues raised
therein, are barred by res judicata. McCornell, in his direct appeal, only challenged the
imposition of postrelease control and consecutive sentences. He made no argument in
his direct appeal concerning his plea, allied offenses, or the trial court’s failure to advise
him of his appellate rights. Therefore, res judicata bars these assignments of error and
are therefore overruled. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 826
N.E.2d 824, ¶ 16-17.
{¶5} We also find no merit in McCornell’s second assignment of error. The
record fails to identify the basis on which McCornell sought to withdraw his plea because
no transcript of the resentencing was provided to this court. The failure to file the
entry pursuant to the limited remand.
transcript prevents an appellate court from reviewing the appellant’s assignment of error.
State v. Turner, 8th Dist. No. 91695, 2008-Ohio-6648, ¶ 13, appeal not allowed, 121 Ohio
St.3d 1476, 2009-Ohio-2045, 905 N.E.2d 655. Accordingly, McCornell’s second
assignment of error is overruled.
{¶6} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
JAMES J. SWEENEY, P.J., and
SEAN C. GALLAGHER, J., CONCUR