State v. Dover

2012 Ohio 1181

• Court: Ohio Court of Appeals
• Decided: March 12, 2012
• Docket: 2011CA00193
• Status: Published

Opinion

[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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