State v. Roberson

2014 Ohio 2292

Opinion

[Cite as State v. Roberson, 2014-Ohio-2292.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff - Appellee : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. : -vs- : : ANTHONY E. ROBERSON : Case No. 2013CA00234 : : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case Number 2007-CR-1989

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 27, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO ANTHONY E. ROBERSON, Pro se Prosecuting Attorney Inmate No. A544-376 Marion Correctional Institution By: RENEE M. WATSON P.O. Box 57 Assistant Prosecuting Attorney Marion, OH 43301 110 Central Plaza South, Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2013CA00234 2

Baldwin, J.

{¶1} Defendant-appellant Anthony Roberson appeals from the November 6,

2013 Judgment Entry of the Stark County Court of Common Pleas denying his Motion

to Vacate Order Requiring Payment of Mandatory Fine. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On January 7, 2008, the Stark County Grand Jury indicted appellant on

one count of trafficking in cocaine in violation of R.C. 2925.03(A)(1)(C)(4)(g), a felony of

the first degree, one count of possession of cocaine in violation of R.C.

2925.11(A)(C)(4)(f), also a felony of the first degree, and one count of failure to comply

with an order or signal of a police officer in violation of R.C. 2921.331(B)(C)(5)(a)(iii), a

felony of the third degree. The first degree felonies were accompanied by major drug

offender specifications. At his arraignment on February 1, 2008, appellant entered a

plea of not guilty to the charges.

{¶3} On April 11, 2008, appellant withdrew his former not guilty plea and

pleaded guilty to the charges and specifications in the indictment. As memorialized in a

Judgment Entry filed on April 18, 2008, appellant was sentenced to an aggregate prison

sentence of twelve (12) years. Appellant, who had filed an affidavit of indigency on April

11, 2008, was ordered to pay a mandatory fine in the amount of $10,000.00. Payment

of the fine was deferred until six (6) months after appellant’s release from prison.

{¶4} Appellant did not timely appeal his conviction and sentence. Pursuant to a

Judgment Entry filed on December 18, 2008 in State v. Roberson, Stark App. No.

2008CA00275, this Court denied appellant’s motion for leave to file a delayed appeal Stark County, Case No. 2013CA00234 3

pursuant to App.R. 5(A). After this Court denied his motion for reconsideration,

appellant filed an appeal with the Supreme Court of Ohio. The Ohio Supreme Court, on

June 17, 2009 in Case No. 2009-0439, denied appellant’s leave to appeal and

dismissed his appeal as not involving any substantial constitutional question.

{¶5} Subsequently, on November 4, 2013, appellant filed a Motion to Vacate

Order Requiring Payment of Mandatory Fine. Appellant, in his motion, argued that the

trial court imposed such fine without considering his present and future ability to pay the

fine as required by R.C. 2929.19(B)(6). As memorialized in a Judgment Entry filed on

November 6, 2013, the trial court denied such motion.

{¶6} Appellant now raises the following assignment of error on appeal:

{¶7} THE TRIAL COURT ERRED BY OVERRULING DEFENDANT-

APPELLANT’S MOTION TO VACATE ORDER REQUIRING PAYMENT OF

MANDATORY FINE.

I

{¶8} Appellant, in his sole assignment of error, argues that the trial court erred

in denying his Motion to Vacate Order Requiring Payment of Mandatory Fine. Appellant

argues that the trial court erred in not considering his ability to pay the fine as required

by R.C. 2929.19(B)(6).

{¶9} We find that appellant's claim is barred by the doctrine of res judicata.

“Under the doctrine of res judicata, a final judgment of conviction bars the convicted

defendant from raising or litigating in any proceedings, except an appeal from that

judgment, any defense or claimed lack of due process that was raised or could have

been raised ... on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175, Stark County, Case No. 2013CA00234 4

180, 226 N.E.2d 104 (1967). In this case, appellant's argument is based on the record.

Therefore, this issue could have been raised on direct appeal. Consequently, the

doctrine of res judicata bars appellant from raising this issue here.

{¶10} In addition, appellant did not submit the transcript of the sentencing

hearing. “When portions of the transcript necessary for resolution of assigned errors are

omitted from the record, the reviewing court has nothing to pass upon and thus, as to

those assigned errors, the court has no choice but to presume the validity of the lower

court's proceeding, and affirm.” Knapp v. Edwards Labs. 61 Ohio St.2d 197,199, 400

N.E.2d 384 (1980). Absent the transcript, we must presume the validity of the lower

court's proceedings and affirm.

{¶11} Appellant's sole assignment of error is, therefore, overruled.

{¶12} Accordingly, the judgment of the Stark Licking County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.