State v. Pearce

2014 Ohio 3783

• Court: Ohio Court of Appeals
• Decided: September 2, 2014
• Docket: CA2013-12-091
• Status: Published

Opinion

[Cite as State v. Pearce, 2014-Ohio-3783.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-12-091

: OPINION - vs - 9/2/2014 :

JAMES SHANNON PEARCE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012 CR 00798

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant

RINGLAND, P.J.

{¶ 1} Defendant-appellant, James Shannon Pearce, appeals his sentence from the

Clermont County Court of Common Pleas.

{¶ 2} On November 15, 2012, appellant pled guilty to one count of possession of

criminal tools, one county of forgery and one count of telecommunications fraud. On

December 20, 2012, appellant was sentenced for those crimes as well as the violation of Clermont CA2013-12-091

postrelease control stemming from prior convictions.

{¶ 3} On appeal, this court upheld appellant's conviction and sentence on the above-

named offenses, but remanded the case to the trial court to correct a contradiction in the

length of appellant's remaining postrelease control obligations. Following a hearing on

November 25, 2013, the trial court resentenced appellant on the violation of postrelease

control, imposing a sentence of 1,085 days for that violation.

{¶ 4} Appellant now appeals from that resentencing, raising a single assignment of

error for review.

{¶ 5} Assignment of Error No. 1:

{¶ 6} THE TRIAL COURT ERRED AS A MATTER OF LAW BY SENTENCING

APPELLANT TO SERVE 1,085 DAYS FOR A POST-RELEASE CONTROL VIOLATION.

{¶ 7} Within this assignment of error, appellant raises two arguments: (1) the trial

court erred in failing to make findings as to why appellant was given the maximum sentence;

and (2) the trial court erred in the calculation of the days appellant had remaining on

postrelease control.

{¶ 8} With regard to appellant's first argument, that the trial court erred in failing to

provide the basis for imposing the maximum sentence, we find that argument is barred by the

doctrine of res judicata. The doctrine of res judicata provides that "a final judgment of

conviction bars a convicted defendant who was represented by counsel from raising and

litigating in any proceeding 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

which resulted in that judgment of conviction, or on an appeal from that judgment." State v.

Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 10, citing State v.

Szefcyk, 77 Ohio St.3d 93 (1996), syllabus.

{¶ 9} Appellant had the opportunity on direct appeal to argue that the trial court erred -2- Clermont CA2013-12-091

in failing to provide its reasoning when imposing a maximum sentence. He failed to do so,

and now attempts to raise that argument on appeal from a resentencing entry that was

limited to calculating the correct length of appellant's postrelease control obligations.

Accordingly, appellant's argument is barred by the doctrine of res judicata.

{¶ 10} Appellant's second argument alleges that the trial court failed to grant appellant

credit for the period of time between his sentencing on December 20, 2012, and the date he

was actually delivered to the Ohio Department of Rehabilitation and Correction. In addition,

appellant argues that he may have been entitled to a credit for prison time that was

administratively imposed by the parole board. However, appellant provides no evidence to

prove that any credit was owed in either instance. Appellant does not provide the date that

he was actually delivered to the ODRC in order to determine what credit was owed, nor does

he cite to any proof that he was entitled to a credit for prison time imposed by the parole

board.

{¶ 11} "[T]he burden of affirmatively demonstrating error on appeal and substantiating

the arguments in support of the error is upon * * * the appellant." Wells Fargo Bank, N.A. v.

Baldwin, 12th Dist. Butler No. CA2011-12-227, 2012-Ohio-3424, ¶ 10.

{¶ 12} In light of the foregoing, having found that (1) appellant's argument that the trial

court erred in failing to provide its reasoning when imposing the maximum sentence is barred

by the doctrine of res judicata, and (2) appellant failed to meet his burden of affirmatively

demonstrating error with regard to the days remaining on his postrelease control, appellant's

sole assignment of error is overruled.

{¶ 13} Judgment affirmed.

S. POWELL and PIPER, JJ., concur.

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