[Cite as State v. Sowell, 2016-Ohio-8299.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104673
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MARIOUS SOWELL DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-06-485862-A
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 22, 2016 -i-
ATTORNEY FOR APPELLANT
Myron P. Watson 614 W. Superior Avenue Rockefeller Building, Suite #1144 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} In this accelerated appeal, appellant Marious Sowell appeals his sentence
and assigns the following error for our review:
I. The trial court erred when it denied the appellant’s motion to eliminate the repeat violent offender specification and his request for a new sentencing hearing.
{¶2} Having reviewed the record and pertinent law, we affirm Sowell’s sentence.
The apposite facts follow.
{¶3} In 2007, a jury found Sowell guilty of aggravated burglary, tampering with
evidence, and two counts of having a weapon while under disability, for which the trial
court sentenced Sowell to an aggregate 13 years in prison. The aggravated burglary
count contained a repeat violent offender (“RVO”) specification, upon which the trial
court entered a finding of guilt and added an additional five years to Sowell’s sentence.
Thus, Sowell was sentenced to a total of 18 years in prison. Sowell filed a direct appeal,
and we affirmed his conviction in State v. Sowell, 8th Dist. Cuyahoga No. 90732,
2008-Ohio-5875 (“Sowell I”).
{¶4} In February 2015, Sowell filed a motion to correct his sentence. He argued
that the RVO specification required a finding of “fact” that increased the penalty for
aggravated burglary and, that, because he did not enter a knowing, intelligent, and
voluntary jury waiver regarding the RVO specification, the RVO specification should
have been submitted to the jury for a determination of guilt. The state opposed the
motion arguing that res judicata barred Sowell’s claim because he failed to raise the issue on direct appeal. The trial court denied Sowell’s motion without opinion. Sowell
appealed the trial court’s decision.
{¶5} We concluded in State v. Sowell, 8th Dist. Cuyahoga No. 102752,
2015-Ohio-4770 (“Sowell II”), that Sowell could have and should have raised the court’s
failure to comply with R.C. 2945.05 on direct appeal. We explained as follows:
Sowell argues that R.C. 2941.149(B) is unconstitutional because it conflicts
with his Sixth Amendment right to a trial by jury on any “fact” that
increases his punishment beyond the punishment allowed on facts that were
determined by a jury. Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Alleyne v. United States,
___U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In other words,
he maintains that because the RVO specification increases his punishment
beyond what would be allowed by facts found by the jury on the underlying
offense, he had the right to have the jury determine the facts supporting the
specification. And since R.C. 2945.05 requires that a defendant’s waiver
of the right to a trial by jury must be made in writing and made a part of the
record, none of which occurred in this case, Sowell claims that he did not
validly waive his right to have a jury determine the facts supporting the
specification, so the RVO specification is void.
Sowell forfeited his right to make a Sixth Amendment jury trial argument on the validity of the RVO specification because he failed to raise the issue on direct appeal of his conviction. As a matter of statutory law, “[t]he failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction.” State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph two of the syllabus (1996); Martin v. Bova, 8th Dist. Cuyahoga No. 100844, 2014-Ohio-1247, ¶ 2. As a matter of constitutional law, constitutional violations occurring during sentencing are not structural errors and thus do not render a sentence void. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 20. That being the case, a defendant like Sowell, who was sentenced after Blakely had been announced, had to seek redress of any alleged constitutional violation of that right on direct appeal. Id. at ¶ 28.
Id. at ¶ 8 and 9.
{¶6} On April 5, 2016, Sowell filed in the trial court a “motion to eliminate the
repeat violent offender specification and request for a new sentencing hearing.” He
argued that he was indicted in 2006 for the RVO specification under former R.C.
2941.149 and the statute was deemed unconstitutional in April 2007. He concluded that
because his indictment was never amended to include the new RVO statute, his sentence
was void. The state again argued that res judicata barred his motion. The trial court
denied Sowell’s motion without opinion.
RVO Specification
{¶7} In his sole assigned error, Sowell argues that the trial court erred by denying
his motion to vacate the RVO specification because the former RVO statute, which
existed at the time he was indicted, was deemed unconstitutional.1
1 The Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, found that the former RVO statute was unconstitutional to the extent it required the trial court to conduct factfinding and, therefore, excised the offending provision from the statute. {¶8} Res judicata bars Sowell’s argument. This is Sowell’s third appeal.
Where an argument could have been raised on an initial appeal, res judicata dictates that it
is inappropriate to consider that same argument on a second appeal. State v.
D’Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710; State v. Gillard, 78 Ohio St.3d
548, 549, 679 N.E.2d 276. In Sowell II, this court noted that “even if the court had
jurisdiction to consider Sowell’s motion to correct the sentence regarding the RVO
specification, Sowell was barred by res judicata from raising the issue because he failed
to raise that issue on direct appeal.” Sowell II, 8th Dist. Cuyahoga No. 102752,
2015-Ohio-4770, Fn. 1.
{¶9} We agree with Sowell that res judicata does not bar appellate review of void
or illegal sentences. However, “constitutional violations occurring during sentencing are
not structural errors and thus do not render a sentence void.” Sowell II at ¶ 9, citing State
v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 20
{¶10} Even if res judicata did not bar Sowell’s argument, we would find it to be
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[Cite as State v. Sowell, 2016-Ohio-8299.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104673
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MARIOUS SOWELL DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-06-485862-A
BEFORE: Blackmon, J., E.A. Gallagher, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: December 22, 2016 -i-
ATTORNEY FOR APPELLANT
Myron P. Watson 614 W. Superior Avenue Rockefeller Building, Suite #1144 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.:
{¶1} In this accelerated appeal, appellant Marious Sowell appeals his sentence
and assigns the following error for our review:
I. The trial court erred when it denied the appellant’s motion to eliminate the repeat violent offender specification and his request for a new sentencing hearing.
{¶2} Having reviewed the record and pertinent law, we affirm Sowell’s sentence.
The apposite facts follow.
{¶3} In 2007, a jury found Sowell guilty of aggravated burglary, tampering with
evidence, and two counts of having a weapon while under disability, for which the trial
court sentenced Sowell to an aggregate 13 years in prison. The aggravated burglary
count contained a repeat violent offender (“RVO”) specification, upon which the trial
court entered a finding of guilt and added an additional five years to Sowell’s sentence.
Thus, Sowell was sentenced to a total of 18 years in prison. Sowell filed a direct appeal,
and we affirmed his conviction in State v. Sowell, 8th Dist. Cuyahoga No. 90732,
2008-Ohio-5875 (“Sowell I”).
{¶4} In February 2015, Sowell filed a motion to correct his sentence. He argued
that the RVO specification required a finding of “fact” that increased the penalty for
aggravated burglary and, that, because he did not enter a knowing, intelligent, and
voluntary jury waiver regarding the RVO specification, the RVO specification should
have been submitted to the jury for a determination of guilt. The state opposed the
motion arguing that res judicata barred Sowell’s claim because he failed to raise the issue on direct appeal. The trial court denied Sowell’s motion without opinion. Sowell
appealed the trial court’s decision.
{¶5} We concluded in State v. Sowell, 8th Dist. Cuyahoga No. 102752,
2015-Ohio-4770 (“Sowell II”), that Sowell could have and should have raised the court’s
failure to comply with R.C. 2945.05 on direct appeal. We explained as follows:
Sowell argues that R.C. 2941.149(B) is unconstitutional because it conflicts
with his Sixth Amendment right to a trial by jury on any “fact” that
increases his punishment beyond the punishment allowed on facts that were
determined by a jury. Apprendi v. New Jersey, 530 U.S. 466, 490, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), Blakely v. Washington, 542 U.S. 296,
124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Alleyne v. United States,
___U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In other words,
he maintains that because the RVO specification increases his punishment
beyond what would be allowed by facts found by the jury on the underlying
offense, he had the right to have the jury determine the facts supporting the
specification. And since R.C. 2945.05 requires that a defendant’s waiver
of the right to a trial by jury must be made in writing and made a part of the
record, none of which occurred in this case, Sowell claims that he did not
validly waive his right to have a jury determine the facts supporting the
specification, so the RVO specification is void.
Sowell forfeited his right to make a Sixth Amendment jury trial argument on the validity of the RVO specification because he failed to raise the issue on direct appeal of his conviction. As a matter of statutory law, “[t]he failure to comply with R.C. 2945.05 may be remedied only in a direct appeal from a criminal conviction.” State v. Pless, 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph two of the syllabus (1996); Martin v. Bova, 8th Dist. Cuyahoga No. 100844, 2014-Ohio-1247, ¶ 2. As a matter of constitutional law, constitutional violations occurring during sentencing are not structural errors and thus do not render a sentence void. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 20. That being the case, a defendant like Sowell, who was sentenced after Blakely had been announced, had to seek redress of any alleged constitutional violation of that right on direct appeal. Id. at ¶ 28.
Id. at ¶ 8 and 9.
{¶6} On April 5, 2016, Sowell filed in the trial court a “motion to eliminate the
repeat violent offender specification and request for a new sentencing hearing.” He
argued that he was indicted in 2006 for the RVO specification under former R.C.
2941.149 and the statute was deemed unconstitutional in April 2007. He concluded that
because his indictment was never amended to include the new RVO statute, his sentence
was void. The state again argued that res judicata barred his motion. The trial court
denied Sowell’s motion without opinion.
RVO Specification
{¶7} In his sole assigned error, Sowell argues that the trial court erred by denying
his motion to vacate the RVO specification because the former RVO statute, which
existed at the time he was indicted, was deemed unconstitutional.1
1 The Supreme Court in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, found that the former RVO statute was unconstitutional to the extent it required the trial court to conduct factfinding and, therefore, excised the offending provision from the statute. {¶8} Res judicata bars Sowell’s argument. This is Sowell’s third appeal.
Where an argument could have been raised on an initial appeal, res judicata dictates that it
is inappropriate to consider that same argument on a second appeal. State v.
D’Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710; State v. Gillard, 78 Ohio St.3d
548, 549, 679 N.E.2d 276. In Sowell II, this court noted that “even if the court had
jurisdiction to consider Sowell’s motion to correct the sentence regarding the RVO
specification, Sowell was barred by res judicata from raising the issue because he failed
to raise that issue on direct appeal.” Sowell II, 8th Dist. Cuyahoga No. 102752,
2015-Ohio-4770, Fn. 1.
{¶9} We agree with Sowell that res judicata does not bar appellate review of void
or illegal sentences. However, “constitutional violations occurring during sentencing are
not structural errors and thus do not render a sentence void.” Sowell II at ¶ 9, citing State
v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 20
{¶10} Even if res judicata did not bar Sowell’s argument, we would find it to be
without merit. The failure to timely object to a defect in an indictment constitutes a
waiver of the error. Crim.R. 12(C)(2) (objections to defect in indictment must be raised
before trial); State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596. Any
claim of error in the indictment in such a case is limited to a plain-error review on appeal.
State v. Frazier, 73 Ohio St.3d 323, 652 N.E.2d 1000 (1995); Crim.R. 52(B). In order to
find plain error under Crim.R. 52(B), it must be determined, but for the error, the outcome
of the proceeding clearly would have been otherwise. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. Here, the outcome would not
have been different.
{¶11} The RVO specification in Sowell’s indictment was based on his prior
conviction for aggravated robbery. The Ohio Supreme Court in State v. Hunter, 123
Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, specifically held that “the Sixth
Amendment does not limit a sentencing court’s consideration to the existence of a prior
conviction.” Id. at ¶ 36. As we held in Sowell II, “[b]ased on Hunter, Sowell’s
reliance on this court’s decision in State v. Malcom, 8th Dist. Cuyahoga No. 85351,
2005-Ohio-4133 [in which we held that the trial court properly dismissed the RVO
specification based on a prior conviction because the RVO statute required judicial fact
finding] is no longer viable authority.” Sowell II at fn. 1. Sowell’s RVO specification
was based on his prior conviction; therefore, no findings of fact were necessary.
{¶12} Moreover, the purpose of the indictment is to provide notice to the offender
of the crimes with which he is charged. As we held in State v. Richmond, 8th Dist.
Cuyahoga No. 101215, 2014 -Ohio-4842, ¶ 19, 20, an amendment of the indictment is
not necessary if the defendant is provided notice that the RVO is related to the prior
conviction. In the instant case, Sowell’s indictment clearly states that the RVO
specification was based on his prior conviction of “aggravated robbery” and set forth the
date of the conviction and case number. Therefore, Sowell’s indictment sufficiently
apprised him that the RVO specification was based on this prior conviction.
{¶13} Sowell’s argument related to the Ohio Supreme Court’s decision in Romito
v. Maxwell, 10 Ohio St.2d 266, 277 N.E.2d 223 (1967), is moot. Sowell argued that he would be entitled to a new sentencing hearing if the RVO specification was void
because the RVO specification is interrelated with his conviction for aggravated burglary.
The Supreme Court in Romito affirmed the trial court’s conclusion that the habitual
offender enhancement was void after the main charge for burglary was vacated because
the enhancement was not a conviction for a crime in and of itself but enhanced the
sentence for the burglary conviction. We have determined that the RVO specification is
not void. Moreover, the aggravated burglary sentence is not dependent upon the RVO
specification. Accordingly, Sowell’s assigned error is overruled.
{¶14} 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 be sent to 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.
PATRICIA ANN BLACKMON, JUDGE
EILEEN A. GALLAGHER, P.J., and MARY J. BOYLE, J., CONCUR