State v. Lowery

2013 Ohio 3938

• Court: Ohio Court of Appeals
• Decided: September 13, 2013
• Docket: 25690
• Status: Published

Opinion

[Cite as State v. Lowery, 2013-Ohio-3938.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 25690

v. : T.C. NO. 06CR159

CHARLES B. LOWERY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 13th day of September , 2013.

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

CHARLES B. LOWERY, #A536-057, Ross Correctional Institute, P. O. Box 7010, Chillicothe, Ohio 45601 Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Charles B. Lowery, pro se, appeals a decision of the 2

Montgomery County Court of Common Pleas, Criminal Division, overruling his “motion for

entry of default judgment” and his “motion for summary judgment.” Lowery filed a timely

notice of appeal with this Court on March 22, 2013.

{¶ 2} Lowery was found guilty in 2006 of two counts of aggravated robbery, R.C.

2911.01(A)(2), following a jury trial. The trial court imposed mandatory prison terms of

four years on each count, to be served consecutively. We affirmed Lowery’s convictions

and the sentences they involved on direct appeal. State v. Lowery, 2d Dist. Montgomery

No. 21879, 2007-Ohio-6608.

{¶ 3} On May 5, 2010, Lowery filed a petition for post-conviction relief alleging

that his indictment was defective and that convicting him of two identical aggravated

robbery offenses constituted double jeopardy. The trial court overruled his petition, finding

that it was untimely. We affirmed the judgment of the trial court, finding that Lowery’s

petition was untimely. State v. Lowery, 2d Dist. Montgomery No. 24198, 2011-Ohio-2827.

We also found that Lowery could not collaterally attack his conviction and that his argument

was barred by res judicata. Id.

{¶ 4} On October 20, 2010, Lowery sent a letter to the trial court, asking the court

to modify his two sentences for aggravated robbery. The trial court treated Lowery’s

request as a motion, which the court denied. The court found that Lowery and his counsel

had been afforded an opportunity to review the pre-sentence investigation report prior to

sentencing, pursuant to R.C. 2951.03(B)(2), but did not then object that the contents of the

report were incorrect. The court further found that it lacked jurisdiction to modify Lowery’s

sentence because it is a valid sentence which has been executed. Lowery filed a notice of 3

appeal from the trial court’s judgment. We affirmed the decision of the trial court in State

v. Lowery, 2d Dist. Montgomery No. 24332, 2011-Ohio-3287.

{¶ 5} On December 4, 2012, Lowery filed a motion for default judgment in the

trial court, asserting again that his indictment was defective. Lowery filed a supplement to

his motion for default judgment on December 19, 2012. On January 14, 2013, the State

filed its response to Lowery’s motion in which it argued that the issues raised were barred by

res judicata. Lowery responded by filing a “motion for summary judgment, contempt, and

default.” In an entry filed on February 27, 2013, the trial court overruled Lowery’s motions.

{¶ 6} It is from this judgment that Lowery now appeals.

{¶ 7} Because they are interrelated, Lowery’s three assignments of error will be

discussed together as follows:

{¶ 8} “TRIAL COURT AND COUNTY CONSPIRED AGAINST

APPELLANT’S CONSTITUTIONAL RIGHTS AS TO U.S.C.S. 18 §241.”

{¶ 9} “STATE PRESENTED APPELLANT WITH AN

UNCONSTITUTIONALLY CONSTRUCTED INSTRUMENT, TO WIT: ‘DEFECTIVE

INDICTMENT.’”

{¶ 10} “TRIAL COURT VIOLATED BAN AGAINST ‘DOUBLE JEOPARDY’

WHEN IT TRIED, CONVICTED, AND SENTENCED APPELLANT ON TWO (2)

IDENTICAL AGG. ROBBERY’S [sic].”

{¶ 11} With respect to Lowery’s first, second, and third assignments of error, we

thoroughly addressed identical arguments in State v. Lowery, 2d Dist. Montgomery No.

24198, 2011-Ohio-2827. In that opinion, we found that Lowery’s petition for 4

post-conviction was untimely filed. We also found that Lowery could not collaterally attack

his conviction and that his argument was barred by res judicata. Id. Accordingly, insofar as

Lowery raises the same arguments in the instant appeal, we have already addressed these

issues and found that they lack merit. Id. Thus, we need not address the same arguments

again in the instant appeal because they are clearly barred by the doctrine of res judicata.

{¶ 12} Lastly, Lowery argues that the State failed to respond to his motion for

default judgment. The record, however, clearly establishes that the State filed a response to

Lowery’s motion for default judgment on January 14, 2013. In any event, this argument

would not be grounds for reversal or re-sentencing.

{¶ 13} All of Lowery’s assignments of error are overruled.

{¶ 14} All of Lowery’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

FAIN, P.J. and FROELICH, J., concur.

Copies mailed to:

April F. Campbell Charles B. Lowery Hon. Dennis J. Langer