State v. Mitchell

2012 Ohio 1547

Opinion

[Cite as State v. Mitchell, 2012-Ohio-1547.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 97387

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEVON MITCHELL DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-480533

BEFORE: Cooney, P.J., Keough, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: April 5, 2012 2

FOR APPELLANT

Devon Mitchell, pro se Inmate No. 521-404 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor

By: James M. Price Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 3

COLLEEN CONWAY COONEY, P.J.:

{¶1} Defendant-appellant, Devon Mitchell (“Mitchell”), pro se, appeals from the

trial court’s denial of his motion for resentencing. Finding no merit to the appeal, we

affirm.

{¶2} In October 2006, Mitchell was convicted of one count of kidnapping, six

counts of compelling prostitution, and one count of attempted compelling prostitution.

He was sentenced to an aggregate prison term of 27 years. Mitchell appealed from his

convictions. In November 2007, this court affirmed his convictions and sentence.

State v. Mitchell, 8th Dist. No. 88977, 2007-Ohio-6190; appeal not accepted, 117 Ohio

St.3d 1479, 2008-Ohio-1841, 884 N.E.2d 1110, motion to reopen denied, 8th Dist. No.

88977, 2009-Ohio-1874.

{¶3} Mitchell now appeals, arguing in his sole assignment of error that the court

erred in denying his motion for resentencing. The trial court denied his motion, stating

that each time the victim engaged in sexual activity for hire, it was separate conduct,

receiving a separate punishment. Mitchell argues that his six convictions for compelling

prostitution are allied offenses that should have merged for sentencing. Mitchell’s

argument is barred by res judicata because he did not raise this issue in his direct appeal.

{¶4} It is well established that res judicata bars the consideration of issues that

could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176, 4

2006-Ohio-1245, 826 N.E.2d 824, ¶ 16-17. This court has recognized that the issue of

whether two offenses constitute allied offenses subject to merger must be raised on direct

appeal from a conviction, or res judicata will bar a subsequent attempt to raise the issue.

State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, ¶ 13 (“[T]he question of whether

the verdicts on all counts can be used to support separate convictions for all offenses

charged is decided by the trial court prior to its determination of a defendant’s sentence.

Thus, we now consider the issue settled and hold that the time to challenge a conviction

based on allied offenses is through a direct appeal”).

{¶5} Consequently, where a defendant has not raised the issue on direct appeal,

this court has rejected subsequent claims of improper sentencing on allied offenses as

barred by res judicata. See, e.g., State v. Goldsmith, 8th Dist. No. 95073,

2011-Ohio-840, ¶ 11 (“Because [defendant] failed to raise on direct appeal from his

conviction the issue concerning whether the offenses challenged herein are allied offenses

of similar import subject to merger, we find that the issue is barred by the doctrine of res

judicata.”); State v. Padgett, 8th Dist. No. 95065, 2011-Ohio-1927, ¶ 8, citing State v.

Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967) (“Under the doctrine of res

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

litigating in any proceedings, 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 at

the trial that resulted in that judgment of conviction or on an appeal from that judgment. * 5

* * [T]he proper avenue for appellant’s merger challenge would have been a direct appeal

from his 1999 sentencing.”); State v. Townsend, 8th Dist. No. 97214, 2012-Ohio-496, ¶ 9

(“[Defendant] argued on direct appeal that the evidence was not sufficient to support his

convictions and that the verdict was against the manifest weight of the evidence. He

raised no issue regarding his sentence or allied offenses. Accordingly, any argument

with respect to allied offenses is barred by the doctrine of res judicata.”). See also State

v. Woods, 8th Dist. No. 96487, 2011-Ohio-5825; State v. Franklin, 8th Dist. No. 95991,

2011-Ohio-4953; State v. Ballou, 8th Dist. No. 95733, 2011-Ohio-2925.

{¶6} In the instant case, Mitchell raised ten assignments of error in his direct

appeal. However, none of the assignments related to the merger of allied offenses.

Thus, his argument with respect to allied offenses is barred by the doctrine of res judicata.

The trial court correctly denied Mitchell’s motion for resentencing.

{¶7} Accordingly, Mitchell’s sole assignment of error is overruled.

{¶8} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence. 6

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

____________________________________________________ COLLEEN CONWAY COONEY, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS; EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY