State v. Evans

2015 Ohio 3878

Opinion

[Cite as State v. Evans, 2015-Ohio-3878.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102215

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

TERRY DAVE EVANS

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-569495-A

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: September 24, 2015 ATTORNEYS FOR APPELLANT

Robert L. Tobik Cuyahoga County Public Defender

John T. Martin Assistant Public Defender 310 Lakeside Ave. Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Scott Zarzycki Assistant County Prosecutor 9th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant, Terry Dave Evans, appeals from a judgment of the trial

court that resentenced him to a prison term of 21 years upon a remand from this court in his

direct appeal. For the following reasons, we affirm the trial court’s judgment.

Background

{¶2} After a jury trial, Evans was convicted of two counts of felonious assault,

attempted murder, kidnapping, tampering with evidence, disrupting public services, and

possessing criminal tools. The trial court merged the two counts of felonious assault with the

attempted murder charge. The state elected to proceed under the attempted murder charge,

and the court imposed a prison term of 11 years for that count. The court also imposed six

years on the kidnapping, two years for tampering with evidence, one year for disrupting public

service, and one year on possessing criminal tools. The trial court ordered all terms to be

served consecutively, for a cumulative prison term of 21 years.

{¶3} On his direct appeal, Evans assigned two errors for this court’s review. He

claimed the trial court erred in failing to make a finding concerning his competency prior to

trial. This court rejected that claim, noting a hearing on the issue of competency was held by the trial court, during which Evans’s counsel stipulated to the competency report, which had

found Evans competent.

{¶4} In his direct appeal, Evans also claimed the trial court erred in imposing

consecutive sentences without making the requisite statutory findings. This court agreed,

determining that the trial court did not make the necessary finding that consecutive sentences

were not disproportionate to the seriousness of the offender’s conduct and to the danger the

offender posed to the public. This court reversed his consecutive sentences and remanded the

case for the limited purpose of determining whether consecutive sentences were proper and, if

so, to make the required findings on the record. State v. Evans, 8th Dist. Cuyahoga No.

100382, 2014-Ohio-3229, ¶ 13.

{¶5} On remand, the trial court held a hearing resentencing Evans. The trial court

incorporated the findings made at the original sentencing hearing and made the additional

finding that consecutive sentences were not disproportionate to the seriousness of his conduct

and the danger he posed to the public. The court noted the brutal and horrific manner Evans

treated his victim — choking, stabbing, and pouring chlorine all over her. The court again

sentenced him to consecutive sentences totaling 21 years. Evans now appeals from his

resentencing. {¶6} Evans assigns one error for our review. For the first time, he raises the issue of

merger of allied offenses. He claims the trial court erred in imposing separate sentences for

the allied offenses of attempted murder and kidnapping.

Res Judicata

{¶7} Res judicata bars Evans’s claim.

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 except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997), citing State v. Perry, 10

Ohio St.2d 175, 226 N.E.2d 104 (1967), syllabus.

{¶8} This court has consistently held that the proper time to raise the issue of allied

offenses is through the direct appeal. State v. Davis, 8th Dist. Cuyahoga No. 96908, 2012-

Ohio-1635; State v. Flagg, 8th Dist. Cuyahoga Nos. 95958 and 95986, 2011-Ohio-5386; State

v. Padgett, 8th Dist. Cuyahoga No. 95065, 2011-Ohio-1927; State v. Poole, 8th Dist. Cuyahoga

No. 94759, 2011-Ohio-716; State v. Ballou, 8th Dist. Cuyahoga No. 95733, 2011-Ohio-2925.

A defendant is required to raise the allied offenses issue on direct appeal, or else res judicata

bars a subsequent attempt to raise the issue. Davis; State v. Goldsmith, 8th Dist. Cuyahoga

No. 95073, 2011-Ohio-840; State v. Rodriquez, 8th Dist. Cuyahoga No. 95055, 2010-Ohio- 4902. Evans could have raised the allied-offenses issue in his direct appeal but did not. The

issue is now barred.

{¶9} We note, as an aside, that even if Evans had raised the allied-offense issue on his

direct appeal, his claim would not have been successful. A defendant’s failure to raise the

allied-offense issue at the time of sentencing forfeits all but plain error on appeal. State v.

Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990). This principle of law was recently

affirmed by the Supreme of Ohio in State v. Rogers, Slip Opinion No. 2015-Ohio-2459. To

demonstrate plain error on direct appeal, the defendant would be required to demonstrate an

“obvious” error on the record and show that the error has affected substantial rights, i.e., affected

the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240

(2002). Evans made no attempt in his direct appeal to demonstrate that attempted murder and

kidnapping were allied offenses, and we note that, even though he raises the issue belatedly in

this appeal, he still has not made such a demonstration.

{¶10} Appellant’s sole assignment of error is overruled.

{¶11} Judgment affirmed.

It is ordered that appellee recover of 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. 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.

______________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR