State v. Fryer

2022 Ohio 1374

• Court: Ohio Court of Appeals
• Decided: April 22, 2022
• Docket: 21-CA-00015
• Status: Published

Opinion

[Cite as State v. Fryer, 2022-Ohio-1374.]

COURT OF APPEALS PERRY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : DOUGLAS L. FRYER, : Case No. 21-CA-00015 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Perry County Court of Common Pleas, Case No. 06-CR- 0060

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 22, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH A. FLAUTT DOUGLAS L. FRYER, Pro Se Prosecuting Attorney Marion Correctional Institue 111 North High Street P.O. Box 57 P.O. Box 569 Marion, Ohio 43301 New Lexington, Ohio 43764-0569 Inmate #548-092 Perry County, Case No. 21-CA-00015 2

Baldwin, J.

{¶1} Defendant-appellant Douglas L. Fryer appeals from the September 21,

2021 Entry of the Perry County Court of Common Pleas denying his Motion to Remove

Undifferentiated, Identically Worded, Carbon Copy Charges due to Double Jeopardy and

Due Process Violations, and Failure to Give Notice. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant was indicted in 2006 on thirty-one counts of Gross Sexual

Imposition in violation of R.C. Section 2907.05(A), all third degree felonies, and one

count of Rape in violation of R.C. Section 2907.02(A)(1)(b), a felony of the first degree.

He pleaded guilty to fifteen of the counts of Gross Sexual Imposition and the count of

Rape on March 20, 2007. The balance of the counts was nolled. The Judgment Entry

noting the change of plea was filed by the trial court on March 27, 2007.

{¶3} On April 17, 2007, appellant was sentenced by the trial court and was found

to be a sexual predator. This was pursuant to an agreement between the state and

appellant. The Termination Judgment Entry was filed by the trial court on April 18, 2007.

{¶4} The court reviewed the Notice of Registration Duties of Sexually Oriented

Offender or Child–Victim Offender. The form was signed by appellant and filed with the

court on April 7, 2007. A direct appeal was not filed by appellant on any issues from

either hearing.

{¶5} On March 12, 2014, appellant filed a Motion to Correct Sentence. A request

for an evidentiary hearing on appellant’s classification as a sex offender was made

therein. By Entry filed June 6, 2014, the court granted the motion in part in accordance

with Criminal Rule 32(C) and the Ohio Supreme Court's decisions in State v. Baker, 119 Perry County, Case No. 21-CA-00015 3

Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163 and State v. Lester, 130 Ohio St.3d

303, 2011–Ohio–5204, 958 N.E.2d 142. However, the trial court denied appellant’s

request for an evidentiary hearing. The nunc pro tunc termination entry was filed June

18, 2014.

{¶6} Appellant appealed the trial court's denial of his request for an evidentiary

hearing. State v. Fryer, 5th Dist. Perry No. 14–CA–17, 2015-Ohio-509, 2015 WL 628334.

[“Fryer I ”]. In Fryer I, appointed counsel filed an appellate brief. Fryer I, ¶ 9. Appointed

counsel raised as his sole assignment of error, “I. THE TRIAL COURT ERRED IN

REFUSING TO HOLD AN EVIDENTIARY HEARING AS TO APPELLANT'S STATUS

AS A SEXUAL PREDATOR.” Fryer I, ¶ 7. Appellant himself filed a pro se brief, which in

the interest of justice this Court considered. Fryer I, ¶ 12. Appellant raised as his sole

assignment of error, “I. THE TRIAL COURT ERREED [SIC.] LIN [SIC.] TRYING AND

CONVICTING OF CRIMES THAT WERE NOT SPECIFIC TO DISTINGUISH

DIFFERENT CRIMES CHARGED DUE TO DUPLICITOUS INDICTMENT.” Fryer I, ¶ 13.

{¶7} This Court overruled counsel's and appellant’s pro se assignments of error

and affirmed the June 6, 2014 Judgment Entry of the Perry County Court of Common

Pleas. Fryer I, ¶ 26.

{¶8} On May 1, 2015, appellant pro se filed a “Motion for Hearing” contending:

he was not notified of his right to appeal during the original sentencing hearing; the trial

court failed to properly notify him concerning post release controls; the trial court failed

to conduct the classification hearing in accordance with R.C. 2950.09(B)(2); and the

nunc pro tunc judgment violates Crim.R. 32(C), State v. Baker, 119 Ohio St.3d 197, Perry County, Case No. 21-CA-00015 4

2008-Ohio-3330, 893 N.E.2d 163 and State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-

5204, 958 N.E.2d 142.

{¶9} The state filed a response on May 18, 2015. By Judgment Entry filed May

20, 2015, the trial court denied appellant’s motion. Appellant then appealed, raising the

following assignments of error on appeal:

{¶10} “I. THE TRIAL COURT ERRED WHEN DISREGARDING STATUTORY

REQUIREMENTS WHEN IT DID NOT COMPLY WITH 32(B).”

{¶11} “II. THE TRIAL COURT ERRED WHEN IT DID NOT MAKE THE FINDINGS

OR ADJUDICATION OF GUILT IN THE RECORDS.”

{¶12} “III. THE TRIAL COURT ERRED WHEN IT DID NOT COMPLY WITH R.C.

2929.191 BY NOT HOLDING A HEARING WITH THE DEFENDANT PRESENT.”

{¶13} “IV. THE TRIAL COURT ERRED WHEN THE COURT DISREGARDED

AND FAILED TO EXERCISE ITS STATUTORILY REQUIRED DUTIES DURING THE

DEFENDANTS [SIC.] ALLEGED CLASSIFICATION HEARING.”

{¶14} Pursuant to an Opinion filed on November 2, 2015 in State v. Fryer, 5th Dist.

Perry No. 15-CA-00013, 2015-Ohio-4573, this Court affirmed the judgment of the trial

court.

{¶15} Appellant then filed a “Motion to Dismiss Indictment; Vacate Void Judgment

and Conviction for Improperly Acquiring Subject Matter Jurisdiction” on February 16,

2018. The trial court denied the motion on February 26, 2018. Appellant filed a notice of

appeal on March 19, 2018 and raised three assignments of error: Perry County, Case No. 21-CA-00015 5

{¶16} “I. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF DEFENDANT-APPELLANT WHEN IT FAILED TO DISMISS

INDICTMENT FOR LACK OF SUBJECT MATTER JURISDICTION.”

{¶17} “II. TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF DEFENDANT-APPELLANT WHEN DISMISSING MOTION TO

CORRECT VOID SENTENCE AS THE TRIAL COURT WAS IN VIOLATION OF R. C.

2929.11 AND R. C. 2929.12.”

{¶18} “III. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED TO THE

PREJUDICE OF DEFENDANT APPELLANT AS THE TRIAL COURT HAS NO

AUTHORITY TO IMPOSE A SENTENCE CONTRARY TO LAW.”

{¶19} This Court, in an Opinion filed on July 30, 2018 in State v. Fryer, 5th Dist.

Perry No. 18 CA 00005, 2018-Ohio-3024, affirmed the judgment of the trial court.

{¶20} Thereafter, on September 16, 2021, appellant filed a “Motion to Remove

Undifferentiated, Identically Worded, Carbon Copy Charges due to Double Jeopardy and

Due Process Violations, and Failure to Give Notice”. Appellant, in his motion, alleged

that his guilty plea to fifteen counts of Gross Sexual Imposition was entered “without

notice as to which charges he was to be facing as to the G.S.I. charges as for and to

these charges are carbon copy, manifold and mulitplicitous (sic). Neither (sic) charge is

differentiated in any form to give notice to which charge he would or could be facing as

charge (sic) in the indictment.”

{¶21} The trial court denied appellant’s motion pursuant to an Entry filed on

September 17, 2021.

{¶22} Appellant now raises the following assignments of error on appeal: Perry County, Case No. 21-CA-00015 6

{¶23} “I. THE TRIAL COURT ABUSED IT’S (SIC) DISCRETION AND ERRED

WHEN A DEFENDANT-APPELLANT IS DENIED DUE PROCESS OF LAW AND

PLACED IN DOUBLE JEOPARDY WHEN HE IS TRIED AND CONVICTED ON AN

INDICTMENT WHICH DOES NOT DISTINGUISH BETWEEN CONDUCT ON ANY

GIVEN DATE.”

{¶24} “II. THE TRIAL COURT ABUSED IT’S (SIC) DISCRETION AND ERRED

WHEN IT FAILED TO PROPERLY DISMISS “HANGING CHARGES” PURSUANT TO

Crim.R. 48(A) AND R.C. 2941.33 ALSO VIOLATING HIS DUE PROCESS RIGHTS AND

PLACING HIM IN DOUBLE JEOPARDY.”

I, II

{¶25} Appellant, in his two assignments of error, argues that the trial court erred

in denying his “Motion to Remove Undifferentiated, Identically Worded, Carbon Copy

Charges due to Double Jeopardy and Due Process Violations, and Failure to Give

Notice.”

{¶26} A defendant may challenge the sufficiency of an indictment only by direct

appeal. Crim R 12(C); State v. Jackson, 5th Dist. Knox No. 94–CA–26,

1995WL497632(Aug. 4, 1995) (citing State, ex rel. Hadlock v. McMackin, 61 Ohio St.3d

433, 434, 575 N.E.2d 184(1991)). To the extent that appellant argues the indictment was

defective, he waived that argument by failing to raise it before trial. See Crim. R. 12(C)(2);

State v. Schultz, 96 Ohio St. 114, 117 N.E. 30(1917); State v. Hardy, 8th Dist. Cuyahoga

No. 82620, 2004–Ohio–56; State v. Kenney, 5th Dist. Holmes No. CA93–480A, 2000 WL

699673(May 10,2000); State v. Biros, 78 Ohio St.3d 426, 436, 1997-Ohio-204, 678

N.E.2d 891, 901–902, citing State v. Joseph, 73 Ohio St.3d 450, 455, 653 N.E.2d Perry County, Case No. 21-CA-00015 7

285(1995); and State v. Mills, 62 Ohio St.3d 357, 363, 582 N.E.2d 972, 980(1992) (“Under

Crim. R. 12(B) and 12(G), alleged defects in an indictment must be asserted before trial

or they are waived”).

{¶27} Because appellant did not assert any defects in the indictment in the trial

court prior to sentencing, he cannot raise such issue now. Moreover, “[u]nder the doctrine

of res judicata, a final judgment of conviction bars the defendant from raising and

litigating in any proceeding, except an appeal from that judgment, any defense or any

claimed lack of due process that the defendant raised or could have raised at the trial

which resulted in that judgment of conviction or on appeal from that judgment.” State v.

Snyder, 5th Dist. Tuscarawas No. 2015AP070043, 2016–Ohio–832, ¶ 26 quoting State

v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Further, “[i]t is well-settled that,

‘pursuant to res judicata, a defendant cannot raise an issue in a [petition] for

postconviction relief if he or she could have raised the issue on direct appeal.’ ” State v.

Elmore, 5th Dist. Licking No. 2005–CA–32, 2005–Ohio–5940, ¶ 21 quoting State v.

Reynolds, 79 Ohio St.3d 158, 161, 1997-Ohio-304, 679 N.E.2d 1131.

{¶28} Appellant clearly could have raised his two assignments of error on direct

appeal and, as noted by appellee, raised a similar issue is his first appeal. Appellant is,

therefore, barred by the doctrine of res judicata from raising the issues raised in his

assignments of error now.

{¶29} Appellant’s two assignments of error are, therefore, overruled. Perry County, Case No. 21-CA-00015 8

{¶30} Accordingly, the judgment of the Perry County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, John, J. concur.