[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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