State v. Robinson

[Cite as State v. Robinson, 2015-Ohio-3217.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2014-L-028
- vs - :

JAMES C. ROBINSON, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 03 CR
000117.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

James C. Robinson, pro se, 14724 Shaw Avenue, East Cleveland, OH 44112
(Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, James C. Robinson, acting pro se, appeals the judgment of the

Lake County Court of Common Pleas denying his motion to correct his prison sentence

and his motion to terminate his five-year driver’s license suspension. This is appellant’s

third appeal following his conviction of trafficking in cocaine. This time he argues his

sentence violated his constitutional rights. For the reasons that follow, we affirm.
 {¶2} Between November 2001 and January 2002, appellant trafficked in

cocaine or aided and abetted another in trafficking in cocaine by making sales of this

controlled substance to a confidential informant working with the Lake County Narcotics

Agency.

{¶3} On March 3, 2003, appellant was indicted in a three-count indictment in

which he was charged with trafficking in cocaine in an amount less than one gram in the

vicinity of a school (Count 1); complicity to trafficking in cocaine in an amount more than

one gram but less than five grams (Count 2); and trafficking in cocaine in an amount

more than one gram but less than five grams (Count 3), each being a fourth-degree

felony. The indictment recited that upon conviction of Count 2, there is a presumption in

favor of a prison term. Appellant pled not guilty.

{¶4} On May 6, 2005, appellant pled guilty to Count 2, complicity to trafficking

in cocaine, and the remaining counts were dismissed. With respect to the offense to

which appellant pled guilty, on November 15, 2001, appellant, while acting with an

accomplice, sold 1.18 grams of cocaine to an informant for $200. The court referred the

matter to the probation department for a pre-sentence report, and sentencing was

scheduled for June 2, 2005. However, appellant failed to appear for his sentencing.

The trial court revoked his bond and ordered that a warrant be issued for his arrest.

Subsequently, appellant failed to appear for a bond forfeiture hearing and his bond was

forfeited. Appellant remained a fugitive for more than four years.

{¶5} After appellant was arrested on the bench warrant, the court held a

sentencing hearing on November 12, 2009. Appellant’s counsel asked that the court

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impose a sentence of six months in prison. The prosecutor recommended a sentence of

12 months.

{¶6} The trial court noted that appellant had previously been convicted of

carrying a concealed weapon and attempted possession of drugs in 1999, theft and

burglary in a separate case later in 1999, and theft in 2001.

{¶7} The trial court sentenced appellant to 17 months in prison and suspended

his driver’s license for five years.

{¶8} On December 14, 2009, appellant filed a motion to withdraw his guilty

plea. On the same day, he appealed his conviction, arguing that: (1) his counsel was

ineffective because he allowed appellant to plead guilty, although his guilty plea was not

voluntary; (2) the trial court erred in accepting appellant’s guilty plea because it was not

voluntarily entered; (3) the trial court abused its discretion in sentencing appellant to 17

months in prison and in suspending his driver’s license; (4) his license suspension was

not authorized by the applicable statute; and (5) the trial court erred by imposing court

costs. The state argued appellant’s challenge to the trial court’s acceptance of his guilty

plea was not ripe because his December 14, 2009 motion to withdraw his guilty plea

was still pending in the trial court. Appellant agreed and withdrew his assignment of

error challenging the trial court’s acceptance of his guilty plea.

{¶9} On September 16, 2011, in State v. Robinson, 11th Dist. Lake No. 2009-L-

168, 2011-Ohio-4695 (“Robinson I”), this court held that appellant’s guilty plea was

voluntarily entered, id. at ¶22; that his sentence of 17 months in prison was not contrary

to law or an abuse of discretion, id. at ¶47, 49; and that the trial court did not err in

suspending his driver’s license as such suspension was authorized by statute, id. at

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¶54. However, this court held the trial court erred in imposing court costs. Id. at ¶59.

As a result, this court affirmed in part, reversed in part, and remanded the case to the

trial court on the court costs issue.

{¶10} On remand, the trial court denied appellant's motion to withdraw his guilty

plea and sua sponte waived his court costs. Appellant appealed for the second time,

arguing that: (1) the trial court erred in accepting his guilty plea because it was not

voluntary; (2) the trial court abused its discretion in not allowing him to withdraw his

guilty plea; and (3) the statutes authorizing his driver’s license suspension are

unconstitutional.

{¶11} On December 10, 2012, in State v. Robinson, 11th Dist. Lake No. 2011-L-

145, 2012-Ohio-5824 (“Robinson II”), this court held that appellant’s challenge to the

voluntary nature of his guilty plea was barred by res judicata because this court in

Robinson I held that appellant’s guilty plea was voluntary. Id. at ¶24. Further, this court

held the trial court did not abuse its discretion in denying appellant’s motion to withdraw

his guilty plea. Id. at ¶25. Finally, this court held that appellant’s constitutional challenge

to the statutes authorizing his driver’s license suspension was barred by res judicata

because he could have, but failed to raise it in Robinson I. Id. at ¶29.

{¶12} More than one year after this court released its opinion in Robinson II, on

February 6, 2014, appellant filed in the trial court a “Motion Refiling Defendants

Previous Motion to Correct an Illegally Improper Sentence/Violates Defendant Sixth

Amendment Constituion Rights” (sic throughout) and a “Motion to Modify or Terminated

Imposed Five Year Driver License Suspension” (sic throughout). The state filed a brief

in opposition. The trial court denied both of appellant’s motions. Appellant now appeals

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for the third time, asserting three assignments of error. Because they are interrelated,

they are considered together. They allege:

{¶13} “[1.] Does the trial court sentence violates appellant constitutional rights

and abuse its authority when it refuse to correct an improper sentence which violates

Appellant constitutionals righs and Ex Post Facto when appellant was sentenced to

more than the minimum (sic throughout)

{¶14} “[2.] Does the trial court abuse their authority with reguards to General

Assembly Ohio Revised Code and/or violates Appellant Eightth Amendmentant

Constitutional rights when refusing to grant or restore driving licenses privileges in face

of sentence that shockes the conscience of community (sic throughout).

{¶15} “[3.] Does trial court abuse there discretion and violated appellant’s Eighth

Amendment constitutional rights as guanrteed by united State Constitution and/or the

collateral legal consequences associated with felony conviction when it refused to

modify or terminate appellant’s five year drivers license suspension.” (Sic throughout.)

{¶16} In this appeal appellant challenges only his sentence. He concedes that

he has completed his prison term and that his five-year driver’s license suspension has

expired. As a result, this appeal is moot.

{¶17} “‘Any appeal of a sentence already served is moot.’” Columbus v. Duff,

10th Dist. Franklin No. 04AP-901, 2005-Ohio-2299, ¶12, quoting State v. Wright, 8th

Dist. Cuyahoga No. 83781, 2004-Ohio-4077, ¶18. It is true that “an appeal challenging a

felony conviction is not moot even if the entire sentence has been satisfied before the

matter is heard on appeal.” State v. Golston, 71 Ohio St.3d 224 (1994), syllabus. But

this rule “does not apply if appellant is appealing solely on the issue of the length of his

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sentence and not on the underlying conviction.” State v. Beamon, 11th Dist. Lake No.

2000-L-160, 2001 Ohio App. LEXIS 5655, *4 (Dec. 14, 2001). “If an individual has

already served his sentence, there is no collateral disability or loss of civil rights that can

be remedied by a modification of the length of that sentence in the absence of a

reversal of the underlying conviction. Therefore, appellant’s assertion that the trial court

erred in determining the length of that sentence is a moot issue because appellant has

already served his sentence, and no relief can be granted by this court subsequent to

the completion of the sentence if the underlying conviction itself is not at issue.” Id.

{¶18} Where the sole assignment of error is moot, the appeal is properly

dismissed. Beamon, supra, at ¶6. In any event, we address appellant’s arguments.

{¶19} Collectively, appellant argues the trial court violated his constitutional

rights by imposing a more than the minimum term of 17 months in prison and a five-year

driver’s license suspension.

{¶20} In Robinson I, appellant appealed his 17-month prison sentence and his

five-year driver’s license suspension. He argued the trial court erred by imposing more

than the minimum sentence and by not making findings of fact pursuant to R.C.

2929.11, R.C. 2929.13, and R.C. 2929.14. He also argued the trial court was not

authorized by R.C. 2925.03(G) to impose a five-year driver’s license suspension.

However, he did not argue the trial court violated his constitutional rights in imposing his

sentence, as he does now. Because appellant could have asserted, but failed to assert,

constitutional challenges to his prison term and his driver’s license suspension in

Robinson I, these arguments are now barred by res judicata.

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 {¶21} According to the well-established precedent of the Supreme Court of Ohio,

“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, ¶16. The Supreme Court in State v. Perry, 10 Ohio St.2d 175 (1967),

held: “Under the doctrine of res judicata, a final judgment of conviction bars a convicted

defendant who was represented by counsel 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 * * * on an appeal from that

judgment.” Id. at paragraph nine of the syllabus. Thus, the doctrine serves to preclude

a defendant who has had his day in court from seeking a second opportunity to litigate

that same issue. Saxon, supra, at ¶18. “In so doing, res judicata promotes the

principles of finality and judicial economy by preventing endless relitigation of an issue

on which a defendant has already received a full and fair opportunity to be heard.” Id.

{¶22} The doctrine of res judicata applies to a claimed violation of constitutional

rights that was or could have been asserted on direct appeal. Perry, supra; Robinson II

at ¶29. Appellant now couches the same issues he raised in Robinson I in

constitutional terms in an effort to revisit issues that have or could have been decided in

that case. “[I]ssues that were decided on direct appeal and now recast in a

constitutional argument are ideal examples of issues barred by the doctrine of res

judicata. To the extent arguments could have been raised on direct appeal and are now

cast in conclusions of constitutional effect, they are likewise barred by res judicata and

have been waived by failing to raise them on direct appeal.” State v. Chaiffetz, 3d Dist.

Marion No. 9-99-23, 1999 Ohio App. LEXIS 4225, *6 (Sep. 15, 1999).

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 {¶23} In summary, because appellant could have raised, but failed to raise, each

of his constitutional challenges to his sentence in Robinson I (his direct appeal), he is

barred by res judicata from asserting them in this, his third appeal of his conviction. It is

worth noting that in Robinson II, appellant actually raised the same Eighth Amendment

challenge to his driver’s license suspension that he asserts in the instant appeal. This

court in Robinson II held that, because appellant could have raised that constitutional

argument in Robinson I, but failed to do so, it was barred by res judicata. Robinson II at

¶29.

{¶24} Appellant argues that pursuant to R.C. 2929.14(B), the trial court was

required to impose the minimum sentence. However, he fails to include the remainder

of that subsection, which provides that the minimum sentence must be imposed unless

the court makes one or more of the findings necessary to impose a more than the

minimum sentence. He argues his sentence was unlawful because the trial court did

not make the findings necessary in R.C. 2929.14(B) to support his more than the

minimum sentence. However, he made the identical argument in Robinson I. In that

case, this court stated:

{¶25} Appellant argues the trial court erred by * * * imposing [a] more than

the minimum sentence [and] by not making findings of fact pursuant

to * * * R.C. 2929.14 * * *.

{¶26} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Supreme

Court of Ohio, * * * held that “[t]rial courts have full discretion to

impose a prison sentence within the statutory range and are no

longer required to make findings or give their reasons for imposing

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 * * * more than the minimum sentences.” Id., paragraph seven of

the syllabus. Further, contrary to appellant's argument, the court in

Foster stated that its holding applies to all cases pending on direct

review. Id. at 31. Therefore, Foster applies to the instant case.

Robinson I at ¶39-40.

{¶27} As a result, appellant’s argument that his more than the minimum

sentence is illegal lacks merit because the trial court was not required to make findings

in support and also because his argument is barred by res judicata.

{¶28} For the reasons stated in this opinion, appellant’s assignments of error

lack merit and are overruled. It is the order and judgment of this court that the judgment

of the Lake County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J.,

COLLEEN MARY O’TOOLE, J.,

concur.

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