State v. Jenkins

2013 Ohio 2575

Opinion

[Cite as State v. Jenkins, 2013-Ohio-2575.]

IN THE COURT OF APPEALS FOR MIAMI COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2012 CA 21

v. : T.C. NO. 10CR194/10CR416

MYCHAEL J. JENKINS : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 21st day of June , 2013.

ROBERT E. LONG III, Atty. Reg. No. 0066796, Assistant Prosecuting Attorney, 201 West Main Street, Safety Bldg., Troy, Ohio 45373 Attorney for Plaintiff-Appellee

MYCHAEL J. JENKINS, #645-528, Pickaway Correctional Institute, P. O. Box 209, Orient, Ohio 43146 Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Mychael J. Jenkins appeals, pro se, from a decision of

the Miami County Court of Common Pleas, Criminal Division, which overruled his motion 2

to reduce or modify his prison sentence. Jenkins filed his motion on February 13, 2012.

The trial court issued its decision overruling Jenkins’ motion on September 18, 2012.

Jenkins filed a timely notice of appeal with this Court on October 4, 2012.

{¶ 2} On December 27, 2010, Jenkins plead no contest to two counts of trafficking

in drugs in Case No. 10-CR-194, and two counts of trafficking in drugs in Case No.

10-CR-416, all felonies of the fourth degree. As part of his negotiated plea, Jenkins agreed

to serve two twelve-month consecutive prison terms in Case No. 10-CR-194, and two

twelve-month consecutive prison terms in Case No. 10-CR-416. The sentences in both

cases were ordered to be served consecutively for an aggregate sentence of four years in

prison. Jenkins did not appeal his conviction and/or sentence.

{¶ 3} Approximately two years later on January 9, 2012, Jenkins filed a pro se

motion to modify his sentence with the trial court. The trial court overruled Jenkins’

motion on January 30, 2012. Jenkins did not file an appeal of the trial court’s denial of his

motion to modify his sentence.

{¶ 4} On February 13, 2012, Jenkins filed a second pro se motion to reduce or

modify his sentence which the trial court subsequently overruled on September 18, 2012.

{¶ 5} It is from this judgment that Jenkins now appeals.

{¶ 6} Because they are interrelated, Jenkins’ assignments of error will be

discussed together as follows:

{¶ 7} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUISITE

FINDINGS ON THE RECORD AND THE RECORD DID NOT SUPPORT THE 3

IMPOSITION OF CONSECUTIVE SENTENCES.”

{¶ 8} “THE TRIAL COURT ERRED BY NOT GRANTING THE

APPELLANT’S MOTION TO REDUCE SENTENCE, VACATE SENTENCE AND/OR

TO FIND THAT CRIMINAL RULE 11 AND R.C. 2929.11, ET SEQ., AND FINDING

THAT THEY ARE UNCONSTITUTIONAL AS APPLIED TO THE APPELLANT

MYCHAEL JENKINS WHEN THE UTILIZATION OF CRIMINAL RULE 11 AND R.C.

2929.11, ET. SEQ., ARE APPLIED IN A GENDER AND RACIALLY

DISCRIMINATORY MANNER.”

{¶ 9} ”THE TRIAL COURT ERRED AS A MATTER OF LAW AND TO THE

PREJUDICE OF THE DEFENDANT-APPELLANT BY FAILING TO ADVISE HIM OF

THE NATURE OF THE CHARGES AGAINST HIM AND BY OMITTING

INFORMATION ABOUT THE MAXIMUM PENALTY INVOLVED, CONCLUDING

THAT THE TRIAL COURT HAD NOT SUBSTANTIALLY COMPLIED WITH RULE

11(C)(2) BECAUSE IT FAILED TO INFORM APPELLANT IN ORAL DIALOGUE OF

THE MAXIMUM PENALTIES, ESPECIALLY SINCE THE WRITTEN PLEA FORM

CONTAINED INCORRECT INFORMATION.”

{¶ 10} Pursuant to the doctrine of res judicata, a valid final judgment on the merits

bars all subsequent actions based on any claim arising out of the transaction or occurrence

that was the subject matter of the previous action. Grava v. Parkman Township, 73 Ohio

St.3d 379, 653 N.E.2d 226 (1995). The res judicata bar applies to any defense that was

raised or could have been raised in a criminal defendant’s prior direct appeal from his

conviction and/or sentence. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). [Cite as State v. Jenkins, 2013-Ohio-2575.] {¶ 11} In the instant appeal, if any prejudicial errors did take place when Jenkins

was sentenced in the underlying case, he could have challenged the propriety of the imposed

prison term in a direct appeal from the conviction and subsequent sentencing. As

previously mentioned, Jenkins did not file a direct appeal of his original conviction and

sentence in December of 2010. Accordingly, we find that res judicata precludes Jenkins

from challenging his conviction and sentence in a post-conviction motion to reduce or

modify his sentence filed approximately two years after he was convicted because he failed

to file a direct appeal of the trial court’s final judgment entry issued on December 27, 2010.

{¶ 12} All of Jenkins’ assignments of error are overruled.

{¶ 13} All of Jenkins’ assignments of error having been overruled, the judgment of

the trial court is affirmed.

FROELICH, J. and DONOFRIO, J., concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).

Copies mailed to:

Robert E. Long III Mychael J. Jenkins Hon. Robert J. Lindeman