[Cite as State v. Fisk, 2011-Ohio-6116.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
WASHINGTON COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 11CA4
vs. :
SHANDI R. FISK, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
APPELLANT PRO SE: Shandi R. Fisk, #78804, 1479 Collins Avenue, Marysville, Ohio
43040, Pro Se
COUNSEL FOR APPELLEE: James E. Schneider, Washington County Prosecuting
Attorney, and Alison L. Cauthorn, Washington County
Assistant Prosecuting Attorney, 205 Putnam Street,
Marietta, Ohio 45631
_______________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 11-21-11
ABELE, J.
{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that
overruled a “motion to vacate or correct illegal sentence.” Shandi R. Fisk, defendant below and
appellant herein, previously pled guilty to two counts of drug trafficking in violation of R.C.
2925.03(A)(1). Appellant assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“WHETHER APPELLANT IS THE VICTIM OF A VINDICTIVE
PROSECUTION?”
WASHINGTON, 11CA4 2
SECOND ASSIGNMENT OF ERROR:
“WHETHER THE COURT BELOW WAS JUSTIFIED IN
ALLOWING UNSUBSTANTIATED TESTIMONY?”
THIRD ASSIGNMENT OF ERROR:
“WHETHER A VIOLATION OF DOUBLE JEOPARDY
OCCURRED?”
FOURTH ASSIGNMENT OF ERROR:
“WHETHER APPELLANT[‘]S SENTENCE IS THE RESULT
OF UNSUPPORTED EVIDENCE INTRODUCE [sic] BY THE
PROSECUTOR?”
FIFTH ASSIGNMENT OF ERROR:
“WHETHER APPELLANT[‘]S COUNSEL WAS SO
INEFFECTIVE THAT IT INCREASED THE SENTENCE
LONGER THAN NECESSARY?”
SIXTH ASSIGNMENT OF ERROR:
“WHETHER THE COURT BELOW WAS PARTIAL, IN
FAVOR OF THE PROSECUTION?”
{¶ 2} In May 2010, appellant pled guilty to the aforementioned charges and was
sentenced to serve twenty-five months in prison. Appellant did not appeal that final judgment,
but on December 15, 2010 filed a “Motion to Vacate or Correct an Illegal Sentence.” In her
motion appellant argued that she received ineffective assistance from trial counsel and was the
victim of “vindictive prosecution,” “unsubstantiated testimony” and “prejudicial sentence
enhancement.” Appellant further asserted that "double jeopardy" barred her conviction.
{¶ 3} After appellee filed its memorandum in opposition, the trial court denied
appellant's motion without a hearing. This appeal followed.
WASHINGTON, 11CA4 3
{¶ 4} We jointly consider appellant’s six assignments of error because they all address
issues that appellant could have, and should have, raised in a direct appeal of her conviction.
Accordingly, because she did not take a direct appeal of her conviction, the doctrine of res
judicata now bars her from raising these issues. State v. Pemberton, Gallia App. No. 10CA4,
2011-Ohio-373, at ¶2; State v. Damron, Ross App. No. 10CA3158, 2010-Ohio-6459, at ¶3.
Consequently, the only issue properly before us is whether the trial court erred by overruling
appellant’s motion without conducting a hearing.
{¶ 5} In the case sub judice, the trial court treated appellant's motion as a petition for
postconviction relief in view of the fact that her motion raised various constitutional issues. See
State v. Reynolds (1997), 79 Ohio St.3d 158, 160, 679 N.E.2d 1131. The post-conviction relief
statute, R.C. 2953.21, provides a remedy for a collateral attack upon judgments of conviction
claimed to be void or voidable under the Constitutions of the United States or Ohio. R.C.
2953.21(A)(1)[.] State v. Bradford, Ross App. No. 08CA3053, 2009-Ohio-1864, at ¶7, citing
State v. Hatton (Aug. 4, 2000), Pickaway App. No. 00CA10. To prevail, a petitioner must
establish an infringement or deprivation of constitutional rights. See R.C. 2953.21(A)(1); State
v. Calhoun, 86 Ohio St.3d 279, 283, 714 N.E.2d 905, 1999-Ohio-102.
{¶ 6} A defendant who seeks to challenge a conviction through a petition for
postconviction relief is not, however, automatically entitled to a hearing. See State v. Cole
(1982), 2 Ohio St.3d 112, 113, 443 N.E.2d 169; State ex rel Jackson v. McMonagle, 67 Ohio
St.3d 450, 451, 619 N.E.2d 1017, 1993-Ohio-143. Before a court grants a hearing on a petition,
the court must determine whether substantive grounds for relief exist. See, generally, State v.
Jackson (1980), 64 Ohio St.2d 107, 111, 413 N.E.2d 2d 819; State v. Apanovitch (1995), 107
WASHINGTON, 11CA4 4
Ohio App.3d 82, 98, 667 N.E.2d 1041. State v. Wright, Washington App. No. 06CA18,
2006-Ohio-7100, at ¶20. Generally, an appellate court will review a trial court's judgment that
dismissed a postconviction relief petition without a hearing for an abuse of discretion. State v.
Hicks, Highland App. No. 09CA15, 2010-Ohio-89, at ¶11. An abuse of discretion is more than
an error of judgment, "it implies that the court's attitude is unreasonable, arbitrary or
unconscionable." Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 7} Although the trial court in the case sub judice did not rely on res judicata as a
reason to deny appellant’s petition, we believe that the doctrine is applicable. Appellant's
motion raises no issue that could not have been raised during an appeal of her conviction and
sentence. Moreover, even if appellant's arguments were not barred by res judicata, she has not
set forth a plausible claim of entitlement to postconviction relief. Appellant’s guilty plea
constitutes a complete admission of her guilt. Crim.R. 11(B)(1). Thus, appellant's claims
concerning unsubstantiated testimony and evidence, as well as vindictive prosecution, are not
well taken. Furthermore, her argument that she received ineffective assistance of counsel is
grounded in her assertion that trial counsel did not seek corroboration of all of the evidence and
allegations against her. This, too, is not well taken because her guilty plea admitted that the
evidence existed. Nothing more is required for a conviction.
{¶ 8} As to appellant's claim that her sentence was enhanced because the trial court was
prejudiced, she cites nothing from the sentencing hearing transcript to support her argument,
except a trial court reference to her crimes being part of a pattern of criminal activity. This,
however, is a factor that the trial court is required to determine for purposes of felony sentencing.
See R.C. 2929.12(B)(7). Appellant also admits, both in her brief and in her reply brief, that her
WASHINGTON, 11CA4 5
“double jeopardy” argument lacks merit. Thus, we find nothing in appellant’s motion that sets
out a cognizable claim for postconviction relief and we find no error in the trial court's decision
to deny her such relief without a hearing.
{¶ 9} For these reasons, we hereby overrule appellant’s assignments of error and affirm
the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the 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 Washington
County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
WASHINGTON, 11CA4 6
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
State v. Fisk
Combined Opinion