[Cite as State v. Davis, 2012-Ohio-1635.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96908
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILEY DAVIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-275129
BEFORE: Kilbane, J., Rocco, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: April 12, 2012
APPELLANT
Wiley Davis, Jr., pro se
Inmate No. 263-009
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Wiley Davis (“Davis”), pro se, appeals from the trial
court’s judgment entry sentencing him for aggravated murder, kidnapping, and
aggravated robbery. Finding no merit to the appeal, we affirm.
{¶2} The facts of this case were previously set forth by this court in State ex rel.
Davis v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. No. 95777, 2011-Ohio-1966,
in which we stated:
[I]n May 1992, a jury convicted Davis of two counts of aggravated murder
with three felony-murder specifications and a three-year firearm
specification, as well as [four] counts of [kidnapping] and aggravated
robbery with three-year firearm specifications. After the jury
recommended the death penalty for the aggravated murder charges, the trial
court on June 1, 1992, imposed the death penalty for those charges, and 15
to 25 years consecutively for the kidnapping and aggravated robbery
charges, as well as three years for the firearm specifications.
In Davis v. Mitchell (C.A.6, 2003), 318 F.3d 682, the United States Court of
Appeals for the Sixth Circuit granted Davis habeas corpus relief by ruling
that the trial court had given the jury unconstitutional unanimity instructions
during the sentencing phase of the trial. The Sixth Circuit ordered that a
writ of habeas corpus should issue unless the State of Ohio conducted a new
penalty phase proceeding within 180 days of remand.
In early December 2004, the trial court issued a journal entry which
provided in pertinent part as follows: “Re-sentencing hearing held
12/08/2004. Pursuant to the order of federal court, parties agree to 30
years actual to life plus 3 years actual on firearm specification on Count 1 to
run consecutive to Counts 3 and 4. All other conditions of original sentence
remain.” This entry did not reiterate the charges on which Davis was
convicted, the means of conviction, or the sentences for the other offenses.
Id. at ¶ 2-4.1
1Since the trial court issued this entry, Davis has appealed three other times.
In State v. Davis, 8th Dist. No. 85675, this court dismissed for failure to file a
praecipe. In State v. Davis, 8th Dist. No. 86469, this court denied his motion for a
{¶3} In State ex rel. Davis, we relied on State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163, and found that
the December 2004 sentencing entry does not comply with Baker and
Crim.R. 32. It does not state the means of conviction for any of the counts,
and it specifies the sentence only for [C]ount 1. The [State of Ohio and the
trial judge] have the clear, legal duty to issue a final judgment of
conviction, which must be compliant with Baker and Crim.R. 32, and a
criminal defendant has the clear legal right to such a judgment.
***
Accordingly, [this] court issues the writs of mandamus and procedendo and
orders the [State of Ohio and the trial judge] to issue a final, appealable
order in the underlying case which removes the various jurisdictional
impediments under Crim.R. 32, and Baker. Id. at ¶ 8-9.
{¶4} Subsequently, on May 20, 2011, the trial court issued a nunc pro tunc entry
for the December 10, 2004 entry, stating:
By order of the Eighth District Court of Appeals in [State ex rel. Davis,]
and under authority of State ex rel. Dewine v. Burge, 128 Ohio St.3d,
2011-Ohio-235, the following sentencing journal entry is issued nunc pro
tunc as if and for the sentencing journal entry of December 10, 2004:
On a former day[,] a jury found defendant guilty of aggravated murder[,] in
violation of R.C. 2903.01(A)[,] with felony murder specifications
(specifications one, two and three) and a firearm specification (specification
four) in Count 1; of aggravated murder[,] in violation of 2903.01(B)[,] with
felony murder specifications (specifications one, two and three) and a
firearm specification (specification four) in Count 2; of kidnapping[,] in
violation of R.C. 2905.01[,] with a firearm specification (specification one)
in Count 3; and of aggravated robbery[,] in violation of R.C. 2911.01[,]
with a firearm specification (specification one) in Count 4. On a former
day[,] Count 5 and Count 6 were dismissed without prejudice.
delayed appeal, and in State v. Davis, 8th Dist. No. 87648 this court dismissed the
appeal for failure to file a record.
On a former day[,] defendant elected to have the aggravated felony
specifications in the indictment tried by this court. The court found
defendant guilty of aggravated felony specifications (specifications five and
six) in Count 1; of aggravated felony specifications (specifications five and
six) in Count 2; of aggravated felony specifications (specifications two and
three) in Count 3; and of aggravated felony specifications (specifications
two and three) in Count 4.
Resentencing held 12/08/2004 pursuant to the order of the court in [State ex
rel. Davis] (C.A. 6, 2003), 318 F.3d 682. Parties agree to 30 years actual
to life on Count 1 (aggravated murder) plus three years actual on the firearm
specification (specification four) in Count 1 to be served prior to and
consecutive with the base charge in Count 1. Counts 1 and 2 were merged
by order of the court in State v. Davis, 76 Ohio St.3d 107, 1996-Ohio-414.
The felony murder specifications based upon committing or attempting to
commit rape (specifications three) in Counts 1 and 2 were reversed by order
of the court in [Davis], 76 Ohio St.3d 107, 1996-Ohio-414.
Defendant also sentenced to fifteen (15) to twenty-five (25) years on each
of Counts 3 and 4 to be served concurrently to each other but consecutively
to the sentence in Count 1. Firearm specifications in Counts 2 through 4 to
merge at sentencing with firearm specification in Count 1.
Defendant to receive credit for all time served.
{¶5} It is from this order that Davis now appeals, raising the following three
assignments of error for review.
ASSIGNMENT OF ERROR ONE
The trial court erred in not vacating Davis’[s] sentence that was not
imposed and finalized pursuant to the mandate of the federal court violating
Davis’[s] constitutional right to a speedy trial and his right to due process.
ASSIGNMENT OF ERROR TWO
The trial court erred in not merging Counts 3 and 4 with Counts 1 and 2 as
they constitute allied offenses of similar import under R.C. 2941.25(A),
therefore [Davis’s] constitutional right against double jeopardy has been
violated and his sentence is void.
ASSIGNMENT OF ERROR THREE
Because the indictment(s) filed against [Davis] failed to include all
elements required to be proven beyond a reasonable doubt to obtain a valid
finding of guilt as to Counts 1-4 [, Davis] was denied his liberty interest
established by the Ohio Constitution to have a grand jury determine
probable cause for each and every element of a charged offense in violation
of [his] right to due process as guaranteed by the 14th Amendment to the
United States Constitution.
Imposition of Sentence
{¶6} In the first assignment of error, Davis claims that his constitutional right to
a speedy trial was violated when the trial court sentenced him outside the 180-day
mandate set forth by the Sixth Circuit Court of Appeals in Davis, 318 F.3d 682. He
claims that he was not resentenced until the nunc pro tunc entry of May 11, 2011, which
was more than six years after the federal court deadline.
{¶7} In Davis, the Sixth Circuit Court of Appeals mandated that the state of Ohio
conduct “a new penalty proceeding within 180 days after remand.” Id. at 691. Pursuant
to this order, the trial court held a resentencing hearing on December 8, 2004, which was
within the 180-day time period set by the federal court. At the resentencing hearing, the
parties agreed to a sentence of “30 years actual to life plus 3 years actual on firearm
specification on Count 1 to run consecutive to Counts 3 and 4.” The trial court did not
change any other conditions of Davis’s original sentence. By resentencing Davis in
December 2004, we find that the trial court complied with the Sixth Circuit’s mandate in
Davis.
{¶8} Davis further argues that the trial court violated Crim.R. 32(A) by failing to
sentence him within a reasonable time. This court, however, has previously found that
Crim.R. 32(A) does not apply in cases where an offender must be resentenced. State v.
Huber, 8th Dist. No. 85082, 2005-Ohio-2625, ¶ 8; State v. King, 8th Dist. No. 95233,
2011-Ohio-1079, ¶ 7. “‘This logic, as it relates to Crim.R. 32(A), recognizes the
distinction between a trial court refusing to sentence an offender and a trial court
improperly sentencing an offender.’” King at ¶ 7, quoting State v. Spears, 9th Dist. No.
24953, 2010-Ohio-1965, ¶ 19. Again, in the instant case, the trial court imposed Davis’s
sentence within 180 days from the federal court’s mandate. As such, there was no delay.
{¶9} Accordingly, the first assignment of error is overruled.
Merger
{¶10} In the second assignment of error, Davis challenges his sentence, claiming
that his convictions for kidnapping and aggravated robbery (Counts 3 and 4) should have
merged with his convictions for aggravated murder (Counts 1 and 2).
{¶11} However, 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 res judicata bars the consideration of
issues that could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 17.
{¶12} As we recently stated in State v. Flagg, 8th Dist. Nos. 95958 and 95986,
2011-Ohio-5386:
This court has consistently held that “the time to challenge a conviction
based on allied offenses is through a direct appeal — not at a resentencing.”
State v. Poole, Cuyahoga App. No. 94759, 2011-Ohio-716, at ¶ 13; State v.
Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927, at ¶ 8; State v.
Ballou, Cuyahoga App. No. 95733, 2011-Ohio-2925.
‘The issue of whether two offenses constitute allied offenses of similar
import subject to merger has been recognized as an issue that is required to
be raised on direct appeal from a conviction, or else res judicata will bar a
subsequent attempt to raise the issue.’ State v. Goldsmith, Cuyahoga App.
No. 95073, 2011-Ohio-840, at ¶ 6, citing State v. Abuhilwa, Summit App.
No. 25300, 2010-Ohio-5997; State v. Rodriquez, Cuyahoga App. No.
95055, 2010-Ohio-4902.
In the present instance, the proper avenue for appellant’s merger challenge
would have been in his earlier appeal. Therefore, we find appellant’s first
assignment of error to be res judicata. Id. at ¶ 7-9.
{¶13} Likewise, in the instant case, Davis brought a direct appeal from his
convictions, appealed the denial of petition for postconviction relief, and appealed to the
Ohio Supreme Court and the Sixth Circuit Court of Appeals arguing various errors, but
failed to raise the allied offense argument he now presents. The proper avenue for
Davis’s merger challenge would have been in his earlier appeals.
{¶14} Thus, we find that Davis’s second assignment of error is barred by res
judicata.
Indictment
{¶15} In the third assignment of error, Davis argues that the indictment failed to
set forth essential elements of the offenses for which he was convicted. Davis’s
argument, however, is also barred by res judicata.
{¶16} As previously stated, under the doctrine of res judicata, a final judgment of
conviction bars the convicted defendant from raising and litigating in any proceeding 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. Perry, 10 Ohio St.2d at 180, 226 N.E.2d 104. This is Davis’s sixth
appeal, but this is the first time he raises the indictment issue he now presents. The
proper avenue for Davis’s challenge would have been in his earlier appeals.
{¶17} Therefore, we find that Davis’s third assignment of error is barred by res
judicata.
{¶18} Accordingly, 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
KENNETH A. ROCCO, P.J., and
JAMES J. SWEENEY, J., CONCUR