State v. Andrews , 2020 Ohio 605 ( 2020 )

[Cite as State v. Andrews, 2020-Ohio-605.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-19-049
Appellee Trial Court No. 18 CR 639
v.
Allan D. Andrews DECISION AND JUDGMENT
Appellant Decided: February 21, 2020
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Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.
Allan D. Andrews, pro se.
*****
OSOWIK, J.
{¶ 1} This is an accelerated, pro se appeal from a November 8, 2019 judgment of
the Sandusky County Court of Common Pleas, denying appellant’s pro se motion to
vacate sentence arising from appellant’s December 21, 2018 voluntary plea agreement.
{¶ 2} Pursuant to the joint plea agreement, appellant pled guilty to three counts of
aggravated trafficking in drugs, in violation of R.C. 2925.03, felonies of the third degree.
In exchange, the three additional counts of aggravated trafficking in drugs, in violation of
R.C. 2925.03, felonies of the second degree, were dismissed. In addition, the parties
presented joint, written sentencing recommendations to the trial court.
{¶ 3} On December 21, 2018, the trial court accepted and adopted the joint
sentencing recommendation of the parties. Accordingly, appellant was sentenced to a
seven-year term of incarceration. The sentence did not deviate from any of the agreed-
upon terms, although the parties had acknowledged that the sentencing recommendations
were not binding upon the trial court. No direct appeal was taken in this case.
{¶ 4} On November 6, 2019, nearly a year after appellant’s App.R. 4(A) deadline
for direct appeal had expired, appellant filed a motion to vacate the above-described,
jointly negotiated and adopted by the trial court, sentence.
{¶ 5} On November 8, 2019, appellant’s motion was denied on a res judicata
basis. This appeal ensued. For the reasons set forth below, this court affirms the
judgment of the trial court.
{¶ 6} Appellant, Allan Andrews, sets forth the following assignment of error:
One: The trial [c]ourt erred in all bases of its denial of defendant[’]s
motion to vacate sentence.
{¶ 7} In the sole assignment of error, appellant asserts that the trial court erred in
the denial of appellant’s pro se motion to vacate the sentence. We do not concur.
2.
{¶ 8} App.R. 4(A) establishes that, “A party shall file the notice of appeal required
by App.R. 3 within 30 days of the later of the entry of judgment or order appealed.” As
applied to the instant case, an appeal of this case needed to have been filed on or before
January 20, 2019. The subject notice of appeal was filed on November 22, 2019, more
than ten months after the expiration of the filing deadline.
{¶ 9} R.C. 2953.08(D)(1) establishes that, “A sentence imposed upon a defendant
is not subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is imposed by
sentencing judge.” (Emphasis added).
{¶ 10} The record reflects that the underlying felony sentence was authorized by
law, was jointly recommended by the parties, and was adopted and imposed by the
sentencing judge. As such, the instant case is not subject to further felony sentence
review pursuant to the plain language of R.C. 2953.08(D)(1).
{¶ 11} In addition to the above-described statutory prohibition of this appeal, State
v. Barfield, 6th Dist. Lucas No. L-06-1262/1263, 2007-Ohio-1037, unequivocally held at
¶ 6, “[T]he principles of res judicata may be applied to bar further litigation in a criminal
case of issues which were raised, or could have been raised, previously in an appeal. We
note also that the res judicata bar applies even where * * * no direct appeal was taken.”
(Emphasis added).
{¶ 12} Similarly, as the Ohio Supreme Court held in State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 34, “The [law of the case] doctrine
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retains its vitality in Ohio * * * [I]t precludes a litigant from attempting to rely on
arguments which were fully pursued, or available to be pursued, on a first appeal * * *
[N]ew arguments are subject to issue preclusion, and are barred.”
{¶ 13} Moreover, as stated, appellant failed to file a direct appeal of the trial
court’s judgment of conviction imposing a seven-year sentence. Because appellant failed
to file a direct appeal, res judicata bars appellant from raising any issue in a subsequent
appeal or trial court proceeding, that could have been raised on direct appeal. As such,
any issue raised in the November 6, 2019 motion to vacate his conviction, is barred by res
judicata since the issues raised in the November 6 motion could have been raised on
direct appeal. Accordingly, we find that the trial court did not err in finding that the
issues raised in appellant’s motion to vacate his sentence were barred by res judicata.
{¶ 14} We have reviewed and considered this matter. We find that this appeal is
prohibited by R.C. 2953.08(D)(1), App.R. 4(A) and res judicata. Accordingly, we find
this matter to be without merit and appellant’s sole assignment of error is found not well-
taken.
{¶ 15} On consideration whereof, the judgment of the Sandusky County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 4.
Judgment affirmed.
4.
State v. Andrews
C.A. No. S-19-049
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
5.