[Cite as State v. McGowan, 2017-Ohio-7124.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2016-A-0052 - vs - :
ANDRE MCGOWAN, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CR 00378.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, OH 44320 (For Defendant- Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Andre McGowan, appeals from the August 9, 2016 judgment of
the Ashtabula County Court of Common Pleas, resentencing him as a result of an error
in its original imposition of post-release control. Appellant’s appointed, appellate
counsel has filed a brief and requested leave to withdraw, pursuant to Anders v.
California, 386 U.S. 738 (1967). Appellant was served with the brief and subsequently
filed a pro se appellate brief. After conducting an independent review of appellant’s case, we conclude the instant appeal is wholly frivolous and affirm the trial court’s
judgment.
{¶2} Appellant was indicted on two counts of robbery, in violation of R.C.
2911.02, felonies of the third degree; two counts of kidnapping, in violation of R.C.
2905.01, felonies of the second degree; one count of theft, in violation of R.C. 2913.02,
a felony of the fifth degree; and one count of grand theft, in violation of R.C. 2913.02, a
felony of the fourth degree. Separate jury trials were held, because the charges
stemmed from two separate incidents and appellant was granted relief from prejudicial
joinder. Ultimately, appellant was found guilty on all counts. The trial court sentenced
appellant on one count of robbery and one count of kidnapping to a total of 10 years;
the remaining counts merged.
{¶3} Appellant appealed and, in State v. McGowan, 11th Dist. Ashtabula No.
2015-A-0015, 2015-Ohio-4430, this court affirmed appellant’s convictions. Appellant
subsequently filed an application for reopening, raising six proposed assignments of
error. After finding appellant was deprived of the effective assistance of appellate
counsel on appeal regarding the duration of post-release control, this court granted the
application, reinstated the appeal, and remanded the case for the trial court to correct
the error. On August 9, 2016, the trial court addressed the error and appellant filed the
instant appeal.
{¶4} On December 12, 2016, appointed appellate counsel filed a brief,
pursuant to Anders, supra. In Anders, the United States Supreme Court held that if
appellate counsel, after a conscientious examination of the record, finds an appeal to be
wholly frivolous, he or she should advise the court and request permission to withdraw.
2 Id. at 744. This request to withdraw must be accompanied by a brief citing anything in
the record that could arguably support an appeal. Id. Further, counsel must furnish his
or her client with a copy of the brief and request to withdraw and give the client an
opportunity to raise any additional issues. Id. Once these requirements have been met,
the appellate court must review the entire record to determine whether the appeal is
wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant
counsel’s motion to withdraw and proceed to a decision on the merits. Id. If, however,
the court concludes the appeal is not frivolous, it must appoint new counsel for the
client. Id.
{¶5} Pursuant to Anders, counsel’s brief was properly served on appellant, who
filed a merit brief. We shall first address appointed counsel’s proposed potential
assignment of error. It provides:
{¶6} “Whether appellant’s sentence, particularly the trial court’s findings under
R.C. 2929.14(C)(4), was supported by the record.”
{¶7} Appointed counsel’s potential assignment of error challenges the trial
court’s imposition of consecutive sentences on resentencing. The doctrine of res
judicata bars the further litigation in a criminal case of issues that were or could have
been raised previously in a direct appeal. See e.g., State v. Perry, 10 Ohio St.2d 175
(1967), paragraph nine of the syllabus. Appellant could have raised challenges to his
sentence on direct appeal; he did not do so.
{¶8} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio
Supreme Court clarified the foregoing in relation to post-release control issues. It
observed “when a judge fails to impose statutorily mandated post-release control as
3 part of a defendant’s sentence, that part of the sentence is void and must be set aside.”
Id. at ¶26. Nevertheless, “res judicata still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the ensuing
sentence.” Id. at ¶40. The remand for resentencing was limited to the issue of correcting
the improper imposition of post-release control. The trial court complied with this order
and imposed the legally correct post-release control sanction. Because the remaining
lawful elements of appellant’s sentence were not at issue on remand, those details and
that aspect of appellant’s conviction are res judicata. We therefore hold there are no
colorable issues relating to the nature and adequacy of the trial court’s findings vis-à-vis
its imposition of consecutive sentences.
{¶9} Appointed counsel’s potential assignment of error has no merit.
{¶10} In his appellate brief, appellant assigns eight potential assignments of
error for our consideration. They provide:
{¶11} “[1.] The trial court erred to the prejudice of the appellant and abused its
discretion by failing to instruct the jury on the lesser-included offenses to Kidnapping
and Robbery. In violation of the Due Process Clause and the 5th and 6th amendment
[sic] right to a fair trial. [Sic.]
{¶12} “[2.] [The] [t]rial court erred to the prejudice of defendant and Abused it’s
Discretion [sic] in finding no Sixth Amendment Speedy Trial violation. Overruled a
motion to Dismiss indictment based on a speedy trial violation.
{¶13} “[3.] The trial court Abused its Discreiton and Erred to the Prejudice of
Defendant in overruling Motion to Suppress confession. In violation of the Confrontation
4 Clause and Due Process of the Fourth, Fifth, Sixth, & Fourteenth Amendments to the
United State[s] Constitution. [Sic.]
{¶14} “[4.] The trial court lacks Subject Matter Jurisdiction to impose sentence
and conviction for the improper Bind over [sic] Procedure for failure to award a Affidavit-
Complaint, & initiate a Preliminary Hearing. In violation of the Due Process Clause of
the Fourteenth Amendment And Sixth Amendment Right to fair and impartial trial. [Sic.]
{¶15} “[5.] The trial court erred to the prejudice of Defendant-Appellant &
Abused its Discretion in assuming Subject-matter jurisdiction when Grand Jury
indictment was never admitted into evidence & not sending indictment with jury during
deliberations in violation of 5th Amendment fair & impartial trial and Due Process
Clause of the 5th Amendment of the United Sates Constitution. [Sic.]
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[Cite as State v. McGowan, 2017-Ohio-7124.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2016-A-0052 - vs - :
ANDRE MCGOWAN, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014 CR 00378.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).
Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, OH 44320 (For Defendant- Appellant).
CYNTHIA WESTCOTT RICE, P.J.
{¶1} Appellant, Andre McGowan, appeals from the August 9, 2016 judgment of
the Ashtabula County Court of Common Pleas, resentencing him as a result of an error
in its original imposition of post-release control. Appellant’s appointed, appellate
counsel has filed a brief and requested leave to withdraw, pursuant to Anders v.
California, 386 U.S. 738 (1967). Appellant was served with the brief and subsequently
filed a pro se appellate brief. After conducting an independent review of appellant’s case, we conclude the instant appeal is wholly frivolous and affirm the trial court’s
judgment.
{¶2} Appellant was indicted on two counts of robbery, in violation of R.C.
2911.02, felonies of the third degree; two counts of kidnapping, in violation of R.C.
2905.01, felonies of the second degree; one count of theft, in violation of R.C. 2913.02,
a felony of the fifth degree; and one count of grand theft, in violation of R.C. 2913.02, a
felony of the fourth degree. Separate jury trials were held, because the charges
stemmed from two separate incidents and appellant was granted relief from prejudicial
joinder. Ultimately, appellant was found guilty on all counts. The trial court sentenced
appellant on one count of robbery and one count of kidnapping to a total of 10 years;
the remaining counts merged.
{¶3} Appellant appealed and, in State v. McGowan, 11th Dist. Ashtabula No.
2015-A-0015, 2015-Ohio-4430, this court affirmed appellant’s convictions. Appellant
subsequently filed an application for reopening, raising six proposed assignments of
error. After finding appellant was deprived of the effective assistance of appellate
counsel on appeal regarding the duration of post-release control, this court granted the
application, reinstated the appeal, and remanded the case for the trial court to correct
the error. On August 9, 2016, the trial court addressed the error and appellant filed the
instant appeal.
{¶4} On December 12, 2016, appointed appellate counsel filed a brief,
pursuant to Anders, supra. In Anders, the United States Supreme Court held that if
appellate counsel, after a conscientious examination of the record, finds an appeal to be
wholly frivolous, he or she should advise the court and request permission to withdraw.
2 Id. at 744. This request to withdraw must be accompanied by a brief citing anything in
the record that could arguably support an appeal. Id. Further, counsel must furnish his
or her client with a copy of the brief and request to withdraw and give the client an
opportunity to raise any additional issues. Id. Once these requirements have been met,
the appellate court must review the entire record to determine whether the appeal is
wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant
counsel’s motion to withdraw and proceed to a decision on the merits. Id. If, however,
the court concludes the appeal is not frivolous, it must appoint new counsel for the
client. Id.
{¶5} Pursuant to Anders, counsel’s brief was properly served on appellant, who
filed a merit brief. We shall first address appointed counsel’s proposed potential
assignment of error. It provides:
{¶6} “Whether appellant’s sentence, particularly the trial court’s findings under
R.C. 2929.14(C)(4), was supported by the record.”
{¶7} Appointed counsel’s potential assignment of error challenges the trial
court’s imposition of consecutive sentences on resentencing. The doctrine of res
judicata bars the further litigation in a criminal case of issues that were or could have
been raised previously in a direct appeal. See e.g., State v. Perry, 10 Ohio St.2d 175
(1967), paragraph nine of the syllabus. Appellant could have raised challenges to his
sentence on direct appeal; he did not do so.
{¶8} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio
Supreme Court clarified the foregoing in relation to post-release control issues. It
observed “when a judge fails to impose statutorily mandated post-release control as
3 part of a defendant’s sentence, that part of the sentence is void and must be set aside.”
Id. at ¶26. Nevertheless, “res judicata still applies to other aspects of the merits of a
conviction, including the determination of guilt and the lawful elements of the ensuing
sentence.” Id. at ¶40. The remand for resentencing was limited to the issue of correcting
the improper imposition of post-release control. The trial court complied with this order
and imposed the legally correct post-release control sanction. Because the remaining
lawful elements of appellant’s sentence were not at issue on remand, those details and
that aspect of appellant’s conviction are res judicata. We therefore hold there are no
colorable issues relating to the nature and adequacy of the trial court’s findings vis-à-vis
its imposition of consecutive sentences.
{¶9} Appointed counsel’s potential assignment of error has no merit.
{¶10} In his appellate brief, appellant assigns eight potential assignments of
error for our consideration. They provide:
{¶11} “[1.] The trial court erred to the prejudice of the appellant and abused its
discretion by failing to instruct the jury on the lesser-included offenses to Kidnapping
and Robbery. In violation of the Due Process Clause and the 5th and 6th amendment
[sic] right to a fair trial. [Sic.]
{¶12} “[2.] [The] [t]rial court erred to the prejudice of defendant and Abused it’s
Discretion [sic] in finding no Sixth Amendment Speedy Trial violation. Overruled a
motion to Dismiss indictment based on a speedy trial violation.
{¶13} “[3.] The trial court Abused its Discreiton and Erred to the Prejudice of
Defendant in overruling Motion to Suppress confession. In violation of the Confrontation
4 Clause and Due Process of the Fourth, Fifth, Sixth, & Fourteenth Amendments to the
United State[s] Constitution. [Sic.]
{¶14} “[4.] The trial court lacks Subject Matter Jurisdiction to impose sentence
and conviction for the improper Bind over [sic] Procedure for failure to award a Affidavit-
Complaint, & initiate a Preliminary Hearing. In violation of the Due Process Clause of
the Fourteenth Amendment And Sixth Amendment Right to fair and impartial trial. [Sic.]
{¶15} “[5.] The trial court erred to the prejudice of Defendant-Appellant &
Abused its Discretion in assuming Subject-matter jurisdiction when Grand Jury
indictment was never admitted into evidence & not sending indictment with jury during
deliberations in violation of 5th Amendment fair & impartial trial and Due Process
Clause of the 5th Amendment of the United Sates Constitution. [Sic.]
{¶16} [6.] The trial court Abused Its Discretion when it denied Defendant-
Appelalnt Due Process of Law under the 5th and 14th Amendments of the United States
Constitution in assuming jurisdiction over the Robbery & Kidnapping complaints which
were not properly executed in violation of Crim.R. 3. [Sic.]
{¶17} [7.][The] [t]rial court abused its discretion & erred to the prejudice of
Defendant-Appellant by failing to merger Kidnapping with Robbery as allied offenses
and sending allied offenses to jury after acquittal of first trial, violated the Doctrine of
Collateral Estoppel & 5th, 6th Amendment Constitutional Right to a fair trial & Due
Process Clause under the 14th Amendment of the United States Constitution. [Sic.]
{¶18} [8.] Ineffective Assistance of trial Counsel for filing a Relief From
Prejudicial Joinder in having trials separated under one indictment. In violation of the 6th
Amendment. Trial counsel Virginia Miller Committed Ineffective Assistance of Counsel
5 for failing to object to curative instruction. Trial counsel Virginia Miller committed
ineffective assistance of counsel in failing to support argument on Speedy Trial violation
& Crim.R. 3 violation with U.S. & Ohio Constitution violation. Relying entirely on Ohio
Precedent. Ineffective assistance of trial counsel Virginia Miller allowed an
inexperienced attorney who was only to assist as co-counsel to become lead counsel at
Defendant’s second trial. In violation of Defendant’s 6th Amendment Presumptive right
to counsel of his choosing. [Sic.]”
{¶19} Appellant’s first, second, third, sixth, seventh, and eighth potential
assignments of error either have been addressed in his application for reopening, or
could have been addressed on direct appeal. Pursuant to Fischer, supra, they are
therefore barred by res judicata. In his fourth and fifth potential assignments of error,
however, appellant purports to challenge the subject matter jurisdiction of the trial court.
A court’s power to hear a case, i.e., its subject matter jurisdiction, cannot be waived or
forfeited and may be raised at any time. See e.g., State v. Mbodji, 129 Ohio St.3d 325,
2011-Ohio-2880, ¶10.
{¶20} In appellant’s fourth potential assignment of error, he asserts the trial court
lacked subject-matter jurisdiction due to an improper bindover procedure. Whether a
bindover proceeding was proper is a matter that must be raised on direct appeal or it is
barred by res judicata. State v. Callahan, 7th Dist. Mahoning No. 12 MA 173, 2013-
Ohio-5864, ¶10. And, in any event, appellant was indicted on various felony counts by
the Ashtabula County Grand Jury. The indictment properly invoked the trial court’s
subject-matter jurisdiction on the indicted crimes. Gotel v. Gansheimer, 11th Dist.
6 Ashtabula No. 2006-A-0087, 2007-Ohio-2311, ¶8. We discern no jurisdictional error
and thus the fourth potential error lacks merit.
{¶21} Appellant’s fifth potential assignment of error asserts the trial court lacked
subject-matter jurisdiction over the case to the extent the underlying indictment was not
submitted to the jury and the state allegedly changed the charging instrument through a
constructive amendment during the trial. Preliminarily, as just indicated, the properly
filed indictment was sufficient to invoke the trial court’s jurisdiction. Gotel, supra.
Further, the record does not support the allegation that state constructively amended
the indictment at trial. Appellant was indicted by the grand jury and was ultimately
convicted on crimes that were included in the indictment returned by the grand jury.
Regardless, this alleged issue was apparent at the time of trial and could have been
raised on direct appeal. It is therefore res judicata. This potential error lacks merit.
{¶22} With these points in mind, the trial court, on remand, properly imposed the
three years post-release control at the sentencing hearing and entered the same order
in its judgment. After an independent review of the record, we perceive no errors and
conclude the instant appeal is wholly frivolous. The judgment of the Ashtabula County
Court of Common Pleas is affirmed and counsel’s motion to withdraw is granted.
TIMOTHY P. CANNON, J.,
DIANE V. GRENDELL, J.,
concur.
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