[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.
State v. Roberson
Combined Opinion