State v. Shepherd

2013 Ohio 271

• Court: Ohio Court of Appeals
• Decided: January 31, 2013
• Docket: 98709
• Status: Published

Opinion

[Cite as State v. Shepherd, 2013-Ohio-271.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98709

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

CHARLES SHEPHERD DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-427416

BEFORE: Stewart, A.J., Rocco, J., and E.A. Gallagher, J.

RELEASED AND JOURNALIZED: January 31, 2013 FOR APPELLANT

Charles Shepherd, Pro Se Inmate No. 434286 Grafton Correctional Institution 2075 S. Avon Belden Road Grafton, OH 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

BY: T. Allan Regas Assistant County Prosecutor The Justice Center 1200 Ontario Street, 8th Floor Cleveland, OH 44113 MELODY J. STEWART, A.J.:

{¶1} In 2002, a jury found defendant-appellant Charles Shepherd guilty of rape

and attempted kidnapping. The conviction contained sexually violent predator and

repeat violent offender specifications. In June 2012, Shepherd filed a motion to vacate

his sentence as void on grounds that the court submitted the repeat violent offender

specification to the jury in violation of R.C. 2941.149(B). The court denied the motion,

finding it was res judicata because Shepherd failed to raise it on direct appeal and that

“[t]he fact that the defendant may or may not have had a viable appellate issue does not

render his sentence void.” Shepherd’s sole assignment of error contests the court’s

ruling.

{¶2} A final judgment of conviction bars a convicted defendant who was

represented by counsel 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 the judgment of

conviction, or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 226

N.E.2d 104 (1967), paragraph nine of the syllabus. This doctrine, known as res judicata,

“promotes the principles of finality and judicial economy by preventing endless

relitigation of an issue on which a defendant has already received a full and fair

opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846

N.E.2d 824, ¶ 18. {¶3} The court did not err by finding that Shepherd’s motion to vacate his sentence

was barred by res judicata because he failed to raise the issue of the jury determining the

repeat violent offender specification on direct appeal.

{¶4} The record shows that we affirmed Shepherd’s convictions on direct appeal,

rejecting his claims of insufficient evidence, ineffective assistance of counsel, and invalid

sentencing. See State v. Shepherd, 8th Dist. No. 81926, 2003-Ohio-3356. We likewise

denied Shepherd’s request for writs of mandamus and procedendo on the claim that his

sentence was void because the court incorrectly imposed postrelease control. See State

ex rel. Shepherd v. Astrab, 8th Dist. No. 96511, 2011-Ohio-2938, aff’d, 130 Ohio St.3d

361, 2011-Ohio-5789, 958 N.E.2d 573. And in federal habeas proceedings, a magistrate

judge denied Shepherd’s writ of habeas corpus that sought relief on four separate grounds

relating to a ruling in limine, the use of a 13-year-old conviction for impeachment

purposes, insufficient evidence of kidnapping, and that the section of the rape statute

under which he was charged was void for vagueness. See Shepherd v. Ohio, N.D.Ohio

No. 1:04 CV 1283, 2006 U.S. LEXIS 95480 (June 22, 2006).

{¶5} At no time, either on direct appeal or in postconviction proceedings, did

Shepherd raise the issue that the court erred by allowing the jury to determine the repeat

violent offender specification. Nothing prevented him from raising this issue on direct

appeal from his conviction, so principles of res judicata apply in these postconviction

proceedings to bar the assertion of Shepherd’s repeat violent offender claim.

{¶6} Judgment affirmed. It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. A certified

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

Appellate Procedure.

MELODY J. STEWART, ADMINISTRATIVE JUDGE

KENNETH A. ROCCO, J., and EILEEN A. GALLAGHER, J., CONCUR