State v. Ford

2022 Ohio 161

• Court: Ohio Court of Appeals
• Decided: January 24, 2022
• Docket: 14-21-10
• Status: Published

Opinion

[Cite as State v. Ford, 2022-Ohio-161.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 14-21-10

v.

GREGORY W. FORD, II, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court Trial Court No. 2015 CR 247

Judgment Affirmed

Date of Decision: January 24, 2022

APPEARANCES:

Alison Boggs for Appellant

Raymond Kelly Hamilton for Appellee Case No 14-21-10

MILLER, J.

{¶1} Defendant-appellant, Gregory W. Ford, II, appeals the April 1, 2021

judgment of sentence the Union County Court of Common Pleas. For the reasons

that follow, we affirm.

{¶2} We have previously recited much of the factual and procedural

background of this case, and we will not duplicate those efforts here. State v. Ford,

3d Dist. Union No. 14-19-31, 2020-Ohio-3770, ¶ 1-9. Relevant to this appeal, on

December 29, 2015, the Union County Grand Jury indicted Ford on four counts:

Count One of trespass in a habitation in violation of R.C. 2911.12(B), a fourth-

degree felony; Count Two of assault in violation of R.C. 2903.13(A), a first-degree

misdemeanor; Count Three of resisting arrest in violation of R.C. 2921.33(A), a

second-degree misdemeanor; and Count Four of aggravated menacing in violation

of R.C. 2903.21(A), a first-degree misdemeanor. On July 18, 2016, Ford withdrew

his pleas of not guilty and pursuant to a negotiated-plea agreement, entered pleas of

guilty to Counts One, Two, and Three of the indictment. The trial court accepted

Ford’s pleas and found him guilty. In exchange, the State recommended the trial

court dismiss Count Four and recommended a jointly-agreed sentence of

community control sanctions.

{¶3} On November 7, 2016, the trial court imposed five years of community

control sanctions with conditions. The sentencing entry specified that if Ford failed

-2- Case No 14-21-10

to complete the term of community control, the trial court may sentence him to 18

months in prison on Count One, 180 days in jail on Count Two, and 90 days in jail

on Count Three. The judgment entry stated that the jail sentences for Counts Two

and Three were to run concurrent to the sentence in Count One. On March 5, 2019,

Ford admitted to a community-control violation. However, at the March 12, 2019

sentencing hearing, the trial court continued his community control and did not

impose the previously suspended terms of incarceration.

{¶4} On September 20, 2019, the State filed a second community-control

violation against Ford alleging that he was convicted of felonious assault in Madison

County case number 2018-CR-0200 on August 29, 2019. On October 31, 2019,

Ford entered an admission to violating the terms of his community control. The

trial court then sentenced Ford to serve the previously reserved term of 18 months

in prison for the three offenses. Additionally, the trial court ordered this sentence

to be served consecutively to the sentence imposed in the Madison County case.

{¶5} On November 2, 2019, Ford filed a notice of appeal with this court. In

his direct appeal, Ford raised a single assignment of error complaining that the trial

court erred by ordering his sentence to run consecutive to the sentence imposed in

the Madison County case. Ford, 2020-Ohio-3770, at ¶ 10. Ford raised two

arguments in support of his assignment of error. Id. First, Ford argued the trial

court failed to notify him at the time of his original sentencing on November 7, 2016

-3- Case No 14-21-10

or the March 12, 2019 sentencing hearing on his community control violation of the

possible consequences for his commission of a new felony, and the possibility that

the trial court could order his sentence to be served consecutively to his sentence for

a new felony. Id. at ¶ 11. Second, Ford argued that the trial court failed to make

the required consecutive-sentencing findings under R.C. 2929.14(C)(4) on the

record. Id.

{¶6} With respect to Ford’s argument that the trial court failed to notify him

of the possible consequences he faced for the commission of a new felony and the

possibility that the sentence could be served consecutively to his sentence in another

case, we noted that Ford failed to include transcripts from the 2016 or 2019

sentencing hearings. Id. at ¶ 15. Thus, this court was unable to review the relevant

portion of the record to address the merits of his argument. Id. Therefore, we

presumed regularity in the proceedings and the validity of the trial court’s

notifications and found this portion of his argument to be without merit. Id. at ¶ 16.

{¶7} However, with regard to Ford’s argument that the trial court failed to

make the consecutive-sentencing findings under R.C. 2929.14(C)(4) on the record,

we found that the trial court did not make the required consecutive-sentencing

findings at the October 31, 2019 sentencing hearing. Id. at ¶ 21. Accordingly, we

affirmed Ford’s conviction but reversed his sentence and remanded the matter for

resentencing. Id. at ¶ 22.

-4- Case No 14-21-10

{¶8} On April 1, 2021, the trial court held a resentencing hearing where it

again sentenced Ford to 18 months in prison on Count One, 180 days in jail on

Count Two to be served concurrently to the sentence for Count One, and 90 days in

jail on Count Three to be served to concurrent to the sentences for Counts One and

Two. Further, the trial court ordered the sentences for Counts One, Two, and Three

be served consecutively to the sentence imposed in the Madison County case. The

trial court made the findings necessary to support consecutive sentences. The trial

court filed its judgment entry of sentence that same day.

{¶9} On April 30, 2021, Ford filed his notice of appeal. He raises one

assignment of error for our review.

Assignment of Error

The trial court erred when, on remand, it again ordered Appellant’s sentence to run consecutive to the sentence he received in Madison County; an offense known to the court at the time of the initial community control violation hearing, without giving Appellant proper notice that any future violation that occurred as a result of the commission of another crime could result in the suspended sentence being served consecutive to the new sentence.

{¶10} In his assignment of error, Ford argues the trial court erred when, on

remand, it again ordered his sentence to run consecutively to the sentence imposed

in the Madison County case. Specifically, Ford argues that his sentence is contrary

to law because at his November 7, 2016 sentencing hearing, the trial court failed to

inform him that, should he violate the terms of his community control and be

-5- Case No 14-21-10

sentenced to prison as a result of that violation, the trial court could choose to

reimpose the prison sentence and order that sentence to be served consecutively to

any new sentence. Ford contends that because the trial court never reserved the

right to impose the sentence consecutive to a new conviction, it was precluded from

imposing the sentence consecutive to the sentence in the Madison County case.

Thus, Ford argues that the trial court erred by ordering his sentence to run

consecutively to the sentence imposed in the Madison County case.

{¶11} However, we do not reach the merits of Ford’s assignment of error

because his argument is barred by the doctrine of res judicata. “‘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 * * * on an appeal from that

judgment.’” State v. Stewart, 3d Dist. Seneca No. 13-21-05, 2021-Ohio-2294, ¶ 15,

quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.

{¶12} Here, although Ford frames his argument as a challenge to the

sentence imposed at the April 1, 2021 resentencing hearing, his assignment of error

actually challenges the validity of the notifications he received at his November 7,

2016 sentencing hearing. Indeed, Ford raised the same challenge in his previous

direct appeal. Ford, 2020-Ohio-3770, at ¶ 10-11. However, in his previous appeal,

-6- Case No 14-21-10

Ford only provided this court with the transcript of the October 31, 2019 sentencing

hearing and failed to provide a transcript of the November 7, 2016 or March 12,

2019 sentencing hearings despite arguing that the trial court failed to make the

proper notifications at either hearing. Id. at ¶ 15. Due to Ford’s failure to file a

complete transcript of the relevant proceedings, a statement of the evidence pursuant

to App.R. 9(C), or an agreed statement pursuant to App.R. 9(D), this court indulged

the presumption of the regularity of the proceedings and the validity of the judgment

in the trial court. Id. In pursuing the identical issue in the present appeal, Ford is

asking this court to ignore the doctrine of res judicata and change our prior ruling,

which we are not inclined to do.

{¶13} Res judicata bars a defendant “who has had his day in court from

seeking a second on that same issue.” State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, ¶ 18. “In so doing, res judicata promotes the principals of finality and

judicial economy by preventing endless relitigation of an issue on which a defendant

has already received a full and fair opportunity to be heard.” Id. Thus, although

Ford has now included transcripts of the November 7, 2016 and the March 12, 2019

sentencing hearings as part of the record for his present appeal, he already had a full

and fair opportunity to be heard on the issue in his previous direct appeal. Ford at

¶ 15. See generally State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973

(applying res judicata in the context of an appeal following a remand for

-7- Case No 14-21-10

resentencing); Saxon at ¶ 19. Ford’s failure to provide the transcripts of the prior

hearings in his previous direct appeal does not entitle him to a second bite at the

apple on his subsequent appeal. Had Ford provided the transcripts in his original

appeal, this court could have analyzed his assignment of error differently and, if any

error was committed by the trial court during the original sentencing in 2016 or the

community control violation hearing in 2019, such error could have been corrected

as part of the previously ordered remand. Therefore, Ford is not able to now

overcome the bar of res judicata to allow us to reach the merits of his argument.

{¶14} Accordingly, Ford’s assignment of error is overruled.

{¶15} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the Union County Court

of Common Pleas.

SHAW and WILLAMOWSKI, J.J., concur.

/jlr

-8-