[Cite as State v. Teagarden, 2013-Ohio-5516.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. 13 CA 47
TREVOR TEAGARDEN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 07 CR 00739
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 13, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT TREVOR TEAGARDEN
PROSECUTING ATTORNEY PRO SE
TRACY F. VAN WINKLE 2338 North West Street
ASSISTANT PROSECUTOR Lima, Ohio 45801
20 South Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 13 CA 47 2
Wise, J.
{¶1} Appellant Trevor J. Teagarden appeals the May 9, 2013, Judgment Entry
of the Licking County Common Pleas Court denying his motion to set aside his 2008
conviction for Trafficking in Controlled Substances following a plea of guilty.
{¶2} Appellee is State of Ohio.
{¶3} This case comes to us on the accelerated calendar. App.R. 11.1, which
governs accelerated calendar cases, provides, in pertinent part:
{¶4} “(E) Determination and judgment on appeal. The appeal will be
determined as provided by App.R. 11.1. It shall be sufficient compliance with App.R.
12(A) for the statement of the reason for the court’s decision as to each error to be in
brief and conclusionary form. The decision may be by judgment entry in which case it
will not be published in any form.”
{¶5} This appeal shall be considered in accordance with the aforementioned
rule.
STATEMENT OF THE FACTS AND CASE
{¶6} On September 21, 2007, Appellant was incarcerated at the Licking County
Justice Center on charges in an unrelated Case.1 On that date, Appellant gave an
envelope to a deputy to mail out of the jail. The deputy, feeling a hard object inside the
envelope, inspected the outside of the envelope and noticed the recipient's address was
identical to the return address. Because Appellant had previously been disciplined for
hoarding medications, the deputy believed that the Appellant was trying to mail a pill out
of the facility. The envelope was opened and a pill was found inside. Appellant was
Licking County, Case No. 13 CA 47 3
interviewed and admitted to trying to mail prescription medication to a friend outside the
jail.
{¶7} On November 6, 2007, Appellant was indicted on one count of Aggravated
Possession of Drugs, in violation of R.C. §2925.11(A)(C)(1)(a), a felony of the fifth
degree.
{¶8} Appellant was appointed counsel and on November 27, 2007, he entered
a not guilty plea.
{¶9} On January 1, 2008, Appellant's court appointed counsel withdrew from
the case as Appellant had retained private counsel. The court appointed a second
attorney on January 28, 2008.
{¶10} On July 21, 2008, Appellant appeared in court for a Change of Plea and
Sentencing Hearing. At that time, a motion to amend the indictment was filed, amending
the charge without objection, from Aggravated Possession of Drugs to Trafficking in
Controlled Substances, a felony of the fourth degree. On that same date, Appellant
entered a guilty plea to the amended charge and the trial court sentenced Appellant to a
term of six months in prison to be served consecutively with the sentence imposed in a
separate case.
{¶11} On December 26, 2012, Appellant filed a motion to set aside his
conviction. Said motion was denied on May 9, 2013.
{¶12} It is from that judgment that Appellant now appeals, assigning the
following errors for review:
Licking County, Case No. 13 CA 47 4
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ERRED, AND DUE PROCESS WAS DENIED,
WHEN THE COURT DENIED THE APPELLANT'S PETITION TO VACATE OR SET
ASIDE JUDGMENT OF CONVICTION OR SENTENCE.
{¶14} “II. THE TRIAL COURT ERRED WHEN IT ALLOWED AMENDMENT OF
THE FATALLY DEFECTIVE INDICTMENT, THUS CHANGING THE NAME OR
IDENTITY OF THE OFFENSE CHARGED THEREFROM, IN VIOLATION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, AS WELL AS SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION.
{¶15} “III. COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, IN VIOLATION
OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, FOR FAILING TO OBJECT TO THE STATE'S MOTION TO AMEND
THE INDICTMENT.
{¶16} “IV. THE JUDGMENT GRANTING THE STATE'S MOTION TO AMEND
THE INDICTMENT IS VOID, IN VIOLATION OF THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION, THUS THE SUBSEQUENT JUDGMENT
OF CONVICTION IS VOID AND MUST BE VACATED.”
I. II., III. and IV.
{¶17} In his Assignments of Error, Appellant argues that the trial court erred in
denying his petition to vacate or set aside his conviction or sentence. We disagree.
{¶18} Upon review, we find that Appellant's motion to vacate or set aside his
conviction or sentence is actually a petition for post-conviction relief under R.C.
Licking County, Case No. 13 CA 47 5
§2953.21. Where a criminal defendant, subsequent to direct appeal, files a motion
seeking to vacate or correct his sentence on the basis that his constitutional rights were
violated, such a motion is a petition for post-conviction relief under R.C. §2953.21. State
v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131, 1997-Ohio-304.
{¶19} Issues which were raised previously or could have been raised previously
in an appeal but were not are barred by the doctrine of res judicata. State v. Perry
(1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus.
{¶20} In the case sub judice, we find that Appellant could have raised the
claimed errors on direct appeal of his sentencing entry but failed to do so. The issues
raised by Appellant in his petition to vacate or set aside his judgment of conviction or
sentence are therefore res judicata.
{¶21} Accordingly, Appellant’s Assignments of Error are overruled.
{¶22} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. SHEILA G. FARMER
JWW/d 0503
Licking County, Case No. 13 CA 47 6
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TREVOR TEAGARDEN :
:
Defendant-Appellant : Case No. 13 CA 47
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. W. SCOTT GWIN
___________________________________
HON. SHEILA G. FARMER