State v. Searles

2012 Ohio 5091

• Court: Ohio Court of Appeals
• Decided: October 30, 2012
• Docket: 12-AP-5
• Status: Published

Opinion

[Cite as State v. Searles, 2012-Ohio-5091.]

COURT OF APPEALS MORGAN COUNTY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. Sheila G. Farmer, J. -vs-

DONALD SEARLES Case No. 12-AP-5

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. CR01043

JUDGMENT: Affirmed

DATE OF JUDGMENT: October 30, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MARK J. HOWDYSHELL DONALD SEARLES, PRO SE 19 East Main Street #419-561 McConnelsville, OH 43756 Ross Correctional Institution P.O. Box 7010 Chillicothe, OH 45601 Morgan County, Case No. 12-AP-5 2

Farmer, J.

{¶1} On November 2, 2001, the Morgan County Grand Jury indicted appellant,

Donald Searles, on four counts of rape in violation of R.C. 2907.02, four counts of

sexual battery in violation of R.C. 2907.03, one count of unlawful sexual conduct with a

minor in violation of R.C. 2907.04, one count of gross sexual imposition in violation of

R.C. 2907.05, and one count of having weapons while under disability in violation of

R.C. 2923.13. All the counts save the weapons count included sexually violent predator

specifications.

{¶2} On December 11, 2001, appellant pled guilty to the weapons count. The

remaining counts were scheduled for a jury trial which commenced on December 18,

2001. The jury found appellant guilty as charged. Following sentencing, appellant filed

an appeal with this court. This court reversed appellant's conviction and ordered a

retrial based upon improperly admitted evidence. See, State v. Searles, 5th Dist. No.

02 CA 4, 2003-Ohio-3498.

{¶3} Subsequent to the reversal and remand, appellant pled guilty on May 4,

2004 pursuant to a plea agreement to the one count of unlawful sexual conduct with a

minor and to an amended count of unlawful sexual conduct with a minor. A sentencing

hearing and a sex offender classification hearing were held on May 5, 2004 wherein

appellant stipulated to the classification of sexual predator. By sentencing entry filed

May 7, 2004, the trial court sentenced appellant per the plea agreement to five years on

each count, to be served consecutively, and classified appellant as a sexual predator.

{¶4} On May 31, 2005, appellant filed a pro se motion for reconsideration of

sentence pursuant to Crim.R. 32.1 and/or motion for postconviction relief pursuant to Morgan County, Case No. 12-AP-5 3

new constitutional ruling, citing Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531

(2004). By journal entry filed December 6, 2005, the trial court denied the motion. On

December 30, 2005, appellant filed a notice of appeal with this court. This court

affirmed the trial court's decision. See, State v. Searles, 5th Dist. No. 05 CA 26, 2006-

Ohio-6726.

{¶5} On September 19, 2008, appellant filed a pro se motion for

reconsideration in the pleas agreement and/or the sentencing and sexual classification,

seeking to be "resentenced as a first time offender." The basis of appellant's motion

was a motion to withdraw his guilty pleas pursuant to Crim.R. 32.1. By journal entry

filed October 2, 2008, the trial court denied the motion. On October 21, 2008, appellant

filed a notice of appeal with this court. This court affirmed the trial court's decision.

See, State v. Searles, 5th Dist. No. 08CA0006, 2009-Ohio-2688.

{¶6} On June 22, 2011, appellant filed a petition to contest

classification/adjudication pursuant to Ohio Revised Code 2950 et seq., arguing

following remand, he was not afforded the statutorily required sex offender classification

hearing. By journal entry filed August 19, 2011, the trial court dismissed the petition,

finding the matter had already been heard by the court.

{¶7} On January 18, 2012, appellant filed a motion to reconsider the August 19,

2011 dismissal. By journal entry filed May 29, 2012, the trial court denied the motion.

{¶8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows: Morgan County, Case No. 12-AP-5 4

I

{¶9} "THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

REQUEST FOR A SEX OFFENDER CLASSIFICATION HEARING VIOLATING HIS

5TH AND 14TH AMENDMENT RIGHTS TO A FAIR TRIAL AND THE DUE PROCESS

OF LAW AS WELL AS PROCEDURAL DUE PROCESS."

{¶10} Appellant claims the trial court erred in denying his request for a sex

offender classification hearing. We disagree.

{¶11} In its sentencing entry filed May 7, 2004 following reversal and remand,

the trial court stated it conducted a sentencing hearing on May 5, 2004 and following

sentencing, proceeded to a sex offender classification hearing. The trial court noted

"[b]oth counsel stipulated that he will be classified as a sexual predator, the Court

accepted this stipulation and so classified him."

{¶12} Thereafter, appellant filed appeals to this court, challenging his sentence

and the sexual predator classification. State v. Searles, 5th Dist. No. 05 CA 26, 2006-

Ohio-6726; State v. Searles, 5th Dist. No. 08CA0006, 2009-Ohio-2688. In the 2009

decision, this court specifically found the following at ¶ 11-14:

The trial court did classify appellant as a sexual predator, but

appellant acquiesced to said classification per his plea agreement as

outlined in the trial court's May 6, 2004 change of plea journal entry:

"The Prosecuting Attorney stated the plea agreement as follows:

"(1) Plea to two (2) counts in violation of O.R.C. § 2907.04(A)(B)(3)

(Unlawful Sexual Conduct With a Minor) both a felony of the third degree Morgan County, Case No. 12-AP-5 5

as amended, with stipulation of consecutive sentencing and sexual

predator status;

"(2) Recommend 5 years prison on each count."

{¶13} We find appellant's current challenge to the sexual predator classification

to be res judicata. Res judicata is defined as "[a] valid, final judgment rendered upon

the merits bars all subsequent actions based upon any claim arising out of the

transaction or occurrence that was the subject matter of the previous action." Grava v.

Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331, syllabus.

{¶14} Appellant's arguments regarding his filings in Warren County fail as the

Warren County court dismissed appellant's case which was affirmed on appeal.

Searles v. State, 12th Dist. No. CA2009-05-055, 2009-Ohio-4666.

{¶15} The sole assignment of error is denied.

{¶16} The judgment of the Court of Common Pleas of Morgan County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Gwin, J. concur.

s/ Sheila G. Farmer_________________

s/ Patricia A. Delaney_______________

s/ W. Scott Gwin___________________

SGF/sg 924 JUDGES [Cite as State v. Searles, 2012-Ohio-5091.]

IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DONALD SEARLES : : Defendant-Appellant : CASE NO. 12-AP-5

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Morgan County, Ohio is affirmed. Costs to

appellant.

JUDGES