[Cite as State v. Peterson, 2012-Ohio-2200.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97362
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DAMIEN PETERSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-471307
BEFORE: Kilbane, J., Celebrezze, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: May 17, 2012
APPELLANT
Damien Peterson, pro se
Inmate No. 503-884
Marion Correctional Institution
940 Marion-Williamsport Road
Marion, Ohio 43302
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Mary McGrath
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Damien Peterson (“Peterson”), pro se, appeals from
the trial court’s judgment denying his motion to dismiss the indictment for constitutional
and statutory violations. Finding no merit to the appeal, we affirm.
{¶2} In October 2005, Peterson was charged with aggravated robbery, felonious
assault, and having a weapon while under disability. The aggravated robbery and
felonious assault counts each contained a one- and three-year firearm specification, a
notice of prior conviction and a repeat violent offender specification.
{¶3} The matter proceeded to a jury trial, at which he was found guilty of
aggravated robbery, felonious assault, and the accompanying firearm specifications. The
trial court found him guilty of having a weapon while under disability and the remaining
specifications. The trial court sentenced Peterson to three years in prison on the firearm
specifications and three years in prison on the repeat violent offender specifications, to be
served prior and consecutive to the sentences imposed on the underlying offenses. The
court further sentenced Peterson to nine years in prison on the aggravated robbery charge,
five years in prison on the felonious assault charge, and four years in prison on the having
a weapon while under disability charge. The trial court ordered that these sentences be
served concurrent to each other, for a total of 15 years in prison.
{¶4} Peterson filed a direct appeal from his convictions to this court. He
challenged the sufficiency and manifest weight of the evidence and asserted prosecutorial
misconduct, as well as ineffective assistance of trial counsel. While we rejected all of
Peterson’s assignments of error, we found plain error in the sentence on the repeat violent
offender specifications. Therefore, we modified Peterson’s sentence to 12 years in
prison and remanded the matter to the trial court for correction of the sentencing entry.
State v. Peterson, 8th Dist. No. 88248, 2007-Ohio-1837, ¶ 59-60 (Peterson I). On May
29, 2007, the trial court entered an order amending Peterson’s sentence to a total of 12
years in prison.
{¶5} While Peterson I was pending, Peterson filed a petition to vacate or set
aside his sentence in February 2007. The trial court denied this motion in March 2007.
The trial court subsequently filed findings of fact and conclusions of law in July 2007.
Peterson then appealed from this decision in State v. Peterson, 8th Dist. No. 90263,
2008-Ohio-4329 (Peterson II). Peterson argued that the court erred by dismissing his
petition as insufficient. We affirmed the trial court’s judgment, finding no error in its
decision. Peterson II at ¶ 16.
{¶6} Then in November 2009, Peterson filed a motion for resentencing, arguing
he was entitled to a de novo sentencing hearing due to the trial court’s failure to advise
him at his original sentencing hearing of the consequences of violating postrelease
control. The trial court denied this motion in April 2010 and Peterson appealed this
decision in State v. Peterson, 8th Dist. No. 90561, 2011-Ohio-344 (Peterson III).
Peterson argued that he was entitled to be resentenced at a de novo sentencing hearing
because the trial court failed to advise him at his original sentencing hearing of the
consequences for violating the terms of postrelease control. The State conceded the
error. Peterson III at ¶ 6.
{¶7} We found that the trial court failed to advise Peterson at the original
sentencing hearing of the consequences for violating postrelease control. Relying on the
Ohio Supreme Court’s decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238,
942 N.E.2d 332, we remanded the matter for a resentencing hearing limited to the proper
imposition of postrelease control. Id. at ¶ 8.
{¶8} In April 2011, Peterson filed a motion to dismiss the indictment for
constitutional and statutory violations. Peterson argued that his case was still pending
because his sentence is void in part due to postrelease control violations. As a result,
Peterson claimed that his right to a speedy trial was violated. In May 2011, the trial court
held a resentencing hearing pursuant to this court’s decision in Peterson III. The trial
court advised Peterson that he was subject to five years of mandatory postrelease control
on the aggravated robbery count, three years of mandatory postrelease control on the
felonious assault count, and three years of mandatory postrelease control on the having a
weapon while under disability count. The trial court also denied Peterson’s motion to
dismiss the indictment for constitutional and statutory violations.
{¶9} It is from this order that Peterson appeals, raising the following single
assignment of error of review.
ASSIGNMENT OF ERROR
The trial court erred when [it denied Peterson’s] motion to dismiss the
indictment for constitutional and statutory speedy trial violations.
{¶10} Peterson claims that the trial court erred when it denied his motion to
dismiss, arguing that his case has been pending for years because postrelease control was
not properly imposed.
{¶11} Contrary to Peterson’s argument, his case has not been pending for years.
Rather his convictions were affirmed by this court in Peterson I. In April 2007, we
“affirm[ed] the finding of guilt, modif[ied] the sentence, and remand[ed] for correction of
the sentencing entry.” Id. at ¶ 1. Furthermore, in January 2011, this court specifically
stated:
[T]he Ohio Supreme Court in [Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332] limited its holding in [State v. Bezak,
114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961] and concluded that
the defendant is only entitled to a hearing for the proper imposition of
postrelease control. The defendant is not entitled to be resentenced on the
entire sentence. Therefore, on remand, the trial court is instructed to
conduct a resentencing hearing limited to the proper imposition of
postrelease control. Accordingly, Peterson’s sole assigned error is
sustained in part.
{¶12} Moreover, Peterson’s argument is barred by the doctrine of res judicata.
See State v. Barb, 8th Dist. No. 90768, 2009-Ohio-2576, ¶ 15; State v. McGuire, 8th Dist.
No. 90768, 2006-Ohio-1330, ¶ 28. Under the doctrine of res judicata, a final judgment
of conviction bars the convicted defendant from raising and litigating in any proceeding,
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 that
judgment of conviction or on an appeal from that judgment. State v. Perry, 10 Ohio
St.2d 175, 180, 226 N.E.2d 104 (1967). It is well established that “any issue that could
have been raised on direct appeal and was not is res judicata and not subject to review in
subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846
N.E.2d 824, ¶ 16.
{¶13} Here, Peterson brought a direct appeal from his convictions, appealed the
denial of his petition to vacate his sentence, and then appealed the denial of his motion for
resentencing. In each appeal, he failed to raise the speedy trial argument he now
presents.
{¶14} As such, Peterson’s sole assignment of error is barred by res judicata.
{¶15} Judgment is affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court 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.
MARY EILEEN KILBANE, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
JAMES J. SWEENEY, J., CONCUR
State v. Peterson
Combined Opinion