State v. Darby

2019 Ohio 2186

• Court: Ohio Court of Appeals
• Decided: June 3, 2019
• Docket: 2019 CA 0013
• Status: Published

Opinion

[Cite as State v. Darby, 2019-Ohio-2186.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2019 CA 0013 ARTHUR L. DARBY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 1992 CR 0455

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 3, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP ARTHUR L. DARBY PROSECUTING ATTORNEY PRO SE JOSEPH C. SNYDER FCI Gilmer ASSISTANT PROSECUTOR Post Office Box 6000 38 South Park Street Glenville, WV 26351 Mansfield, Ohio 44902 Richland County, Case No. 2019 CA 0013 2

Wise, John, P. J.

{¶1} Appellant Arthur L. Darby appeals the January 17, 2019, decision of the

Richland County Court of Common Pleas denying his Petition to Vacate or Set Aside

Judgment of Conviction or Sentence.

{¶2} Appellee is State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant facts and procedural history are as follows:

{¶4} On April 29, 1992, Appellant Arthur Darby was charged in Case No. 92–

CR–455H with five (5) counts of aggravated trafficking of a Scheduled II controlled

substance, in violation of R.C. §2925.03(A)(1). Appellant had been previously convicted

of a felony drug abuse offense in Case No. 88–CR–248, therefore his violations of R.C.

§2925.03(A)(1) were felonies of the second degree.

{¶5} Appellant pled guilty to the charges.

{¶6} On May 7, 1993, the trial court sentenced Appellant to serve five to fifteen

(15) years in prison on count one and to serve three (3) to fifteen (15) years in prison on

counts two through five. The prison term for count one was to be served consecutively to

the prison terms for counts two through five, for a total sentence of eight (8) to fifteen (15)

years.

{¶7} Appellant did not appeal his sentence.

{¶8} On July 8, 1994, the trial court considered a motion filed by Appellant for

suspension of his sentence pursuant to R.C. §2947.061. The trial court granted the

motion and Appellant's sentence was suspended. The trial court placed Appellant on Richland County, Case No. 2019 CA 0013 3

shock probation for five (5) years. Neither Appellant nor the State appealed the trial court's

order granting shock probation.

{¶9} On June 7, 1996, Appellant’s shock probation was unsatisfactorily

terminated.

{¶10} On September 9, 2013, Appellant filed a Petition to Vacate or Set Aside

Judgment of Conviction or Sentence. He argued his sentence in 92–CR–455H was void

because the trial court was statutorily prohibited from granting him shock probation.

Appellant stated the federal government was considering his sentence in 92–CR–455H

in a federal pre-sentencing report.

{¶11} The State filed a response to Appellant's petition for post-conviction relief.

The State argued Appellant's petition for post-conviction relief was untimely and should

be denied.

{¶12} Appellant filed a reply on September 20, 2013.

{¶13} On September 20, 2013, the trial court denied Appellant's petition for post-

conviction relief.

{¶14} Appellant filed an appeal of the September 20, 2013, judgment entry. This

court dismissed Appellant's appeal on January 21, 2014, for failure to prosecute.

{¶15} On September 8, 2014, Appellant filed a Motion to Correct a Void or

Voidable Sentence. Appellant raised the same arguments in his motion as he did in his

petition for post-conviction relief. The State filed a response on September 29, 2014. The

State argued Appellant's arguments were barred by res judicata.

{¶16} By Judgment Entry filed October 7, 2014, the trial court denied Appellant's

motion. Richland County, Case No. 2019 CA 0013 4

{¶17} Appellant appealed and this Court found said appeal to be without merit.

See State v. Darby, 5th Dist. Richland No. 14CA80, 2015-Ohio-2076

{¶18} On January 1, 2019, Appellant filed a Petition to Vacate or Set Aside

{¶19} By Judgment Entry filed January 17, 2019, the trial court denied Appellant’s

petition, finding same to be res judicata.

{¶20} Appellant now appeals.

App.R. 16

{¶21} Initially, we note that appellant's pro se brief does not comply with the rules

for a proper brief as set forth in App.R. 16(A). Appellant’s pro se brief in support of his

appeal fails in almost every respect to comply with the requirements governing the

content of the brief of the Appellant. App.R.16 (A)(1)-(7). Briefs filed in this Court, whether

by counsel or pro se, must comply with App.R. 16.

{¶22} Appellant's brief does not include a statement of the assignments of error

for review or a reference to the place in the record where each error is reflected, in

violation of App.R. 16(A)(3). His brief does not include a table of cases, statutes, and

other authority, in violation of App.R. 16(A)(1) and (2). Appellant's brief does not include

a statement of the issues presented for review, as required by App.R. 16(A)(4), or a brief

statement of the case, as mandated by App.R. 16(A)(5).

{¶23} Most importantly, Appellant has failed, inter alia, to set forth any

assignments of error or propositions of law or cite to the record in this matter. App.R.

16(A)(3) requires that a brief contain assignments of error presented for review on appeal,

and that they be included in a separate statement. Richland County, Case No. 2019 CA 0013 5

{¶24} Pursuant to App.R. 12(A)(2), we are not required to address issues which

are not argued separately as assignments of error, as required by App.R. 16(A). Kremer

v. Cox, 114 Ohio App.3d 41, 60, 682 N.E.2d 1006 (1996); Hawley v. Ritley, 35 Ohio St.3d

157, 159, 519 N.E.2d 390 (1988). Such deficiencies permit this Court to dismiss

appellant's appeal.

{¶25} Notwithstanding the omissions in Appellant's brief, in the interests of justice

and finality we elect to review what we believe are the issues raised in Appellant's appeal.

I.

{¶26} In his brief, Appellant appeals the denial of his petition to vacate or set aside

{¶27} Upon review, we find that this argument was raised in Appellant’s prior

appeal to this Court wherein this Court upheld the trial court’s denial of Appellant’s motion

to correct a void or voidable sentence. Richland County, Case No. 2019 CA 0013 6

{¶28} Based on the foregoing, we find Appellant's arguments are barred by the

doctrine of res judicata.

{¶29} Accordingly the judgment of the Court of Common Pleas, Richland County,

Ohio, is affirmed.

By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.

JWW/d 0528