State v. Moore

[Cite as State v. Moore, 2016-Ohio-1339.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2015CA00137
:
CORVAN MASAI DONTEZ MOORE :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2013CR1451

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 28, 2016

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOHN D. FERRERO, JR. CORVAN MOORE, PRO SE
STARK CO. PROSECUTOR Inmate No. 650-970
KATHLEEN O. TATARSKY M.C.I.
110 Central Plaza S., Ste. 510 P.O. Box 57
Canton, OH 44702-1413 Marion, OH 43301-0057
Stark County, Case No. 2015CA00137 2

Delaney, J.

{¶1} Appellant Corvan Masai Dontez Moore appeals from the July 17, 2015

Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s convictions and sentences

is not necessary to our resolution of this appeal.

{¶3} Appellant was charged by indictment with one count of aggravated robbery

with a firearm specification and one count of felonious assault with a firearm specification.

On December 10, 2013, appellant entered pleas of guilty to the charges and the trial court

merged the firearms specifications for sentencing. Appellant was sentenced to an

aggregate prison term of 10 years.

{¶4} Appellant did not appeal from his convictions and sentences.

{¶5} On July 9, 2015 appellant filed a “Motion for Sentencing; Motion for

Issuance of a Final Appealable Order; Motion for ‘Allied Offense Determination’” which

was overruled by the trial court on July 17, 2015.

{¶6} Appellant now appeals from the trial court’s Judgment Entry of July 17,

2015.

{¶7} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶8} “I. WHETHER A TRIAL COURT’S FAILURE TO RENDER [‘AN

ADJUDICATION OF GUILT’] CRIM.R. 32(C), AND INCORPORATE THAT

ADJUDICATION OF GUILT IN ITS JOURNAL ENTRY, STATE V. REESE, 2007 OHIO
Stark County, Case No. 2015CA00137 3

2267 AT ¶ 10, IMPLICATES A FINAL APPEALABLE ORDER PURSUANT TO: O.R.C.

2505.02; AND, OHIO CONST. ART. IV, SECTION 3(B)(2), TEHREBY VIOLATING DUE

PROCESS. SEE: U.S.C.A. CONST. AMEND. 14.” (brackets in original)

{¶9} “II. WHETHER A TRIAL COURT’S FAILURE TO GIVE NOTIFICATION AS

PER THE CONSEQUENCES OF A VIOLATION OF A POSTRELEASE CONTROL

SANCTION, IMPLICATES A FINAL APPEALABLE ORDER AND RENDERS THE

RESULTING ATTEMPTED SENTENCE A NULLITY AND VOID. SEE: O.R.C.

2943.032(E); AND, WOODS V. TELB (2000), 89 OHIO ST.3D 504, 511.”

{¶10} “III. WHETHER A TRIAL COURT’S FAILURE TO STRICTLY COMPLY

WITH THE MANDATORY PROVISIONS OF CRIM.R. 11(C)(2)(a) [WITH RESPECT TO

MANDATORY POSTRELEASE CONTROL NOTIFICATIONS] IMPLICATES THE

VALIDITY OF THE RESULTING PLEA AS FAR LESS THAN KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY MADE. SEE: STATE V. MONTEZ-JONES, 5TH

DIST. NO. ____ (CITATION OMITTED); STATE V. BOSWELL, 121 OHIO ST.3D 575;

AND, STATE V. HOLCOMB, 184 OHIO APP.3D 577, 2009 3187.”

{¶11} “IV. WHETHER A TRIAL COURT IMPLICATES DUE PROCESS BY

ORDERING ‘CONCURRENT SENTENCES’ WHERE THE RECORD ON ITS FACE

CLEARLY SHOWS THAT THE OFFENSES WERE ‘ALLIED OFFENSES OF SIMILAR

IMPORT’ SUBJECT TO MERGER. SEE: STATE V. COLLINS, 2013 OHIO APP. LEXIS

3869, AT: HN 6 (8TH DIST.).”
Stark County, Case No. 2015CA00137 4

ANALYSIS

I., II.

{¶12} Appellant’s first and second assignments of error are related and will be

considered together. Appellant asserts the trial court erred in issuing a faulty judgment

entry of conviction and failed to advise him of post release control. We disagree.

{¶13} It is difficult to discern appellant’s arguments as to the judgment entry of

conviction and the notification of post release control. Appellant cites a number of

different cases, but makes no reference to any specific errors in his own case. As to

appellant’s arguments premised upon his plea, we note a pro se appellant is required to

submit a brief that contains at least some cognizable assignment of error. Robb v.

Smallwood, 165 Ohio App.3d 385, 2005-Ohio-5863, 846 N.E.2d 878, at ¶ 5 (4th Dist.).

We are not required to make appellant’s arguments for him. Pursuant to App.R. 16(A)(7)

and 12(A)(2), this court is not required to address arguments that have not been

adequately presented for review or supported by proper authority. Brady v. Bucyrus

Police Dept., 194 Ohio App.3d 574, 2011-Ohio-2460, 957 N.E.2d 339, ¶ 42 (3rd Dist.),

citation omitted.

{¶14} As appellee points out, the trial court’s judgment entry demonstrates

appellant’s change-of-plea was accepted and he was found guilty. The trial court also

imposed a mandatory term of 5 years of post release control upon Count I, aggravated

robbery, and a mandatory term of 3 years upon Count II, felonious assault.

{¶15} Appellant’s first and second assignments of error are overruled.
Stark County, Case No. 2015CA00137 5

III.

{¶16} In his third assignment of error, appellant argues the trial court failed to

comply with Ohio Crim.R. 11 during his change-of-plea hearing. Because appellant has

failed to provide the transcript of the change-of-plea hearing, we must disagree.

{¶17} Ohio Crim. R. 11(C)(2)(a) states in pertinent part: “In felony cases the court

may refuse to accept a plea of guilty * * *, and shall not accept a plea of guilty or no

contest without first addressing the defendant personally and doing all of the following:

[d]etermining that the defendant is making the plea voluntarily, with understanding of the

nature of the charges and of the maximum penalty involved, and if applicable, that the

defendant is not eligible for probation or for the imposition of community control sanctions

at the sentencing hearing.”

{¶18} Again, appellant makes only a summary argument referring to the facts of

his own case, stating he “was not afforded a full hearing.” Brief, 11. In reviewing assigned

error on appeal we are confined to the record that was before the trial court as defined in

App.R. 9(A). This rule provides that the record on appeal consists of “[t]he original papers

and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including

exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the

trial court.”

{¶19} App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court’s proceedings, and affirm.”
Stark County, Case No. 2015CA00137 6

{¶20} In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The

duty to provide a transcript for appellate review falls upon the appellant. This is

necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

{¶21} Appellant has not provided a transcript of the change-of-plea and

sentencing hearing on December 10, 2013. Without a transcript, we must presume the

regularity of the trial court’s proceeding. State v. Ellis, 5th Dist. No. 11-COA-015, 2011-

Ohio-5646, *2.

{¶22} Appellant’s third assignment of error is thus overruled.

IV.

{¶23} In his fourth assignment of error, appellant argues the trial court should

have merged the offenses of aggravated robbery and felonious assault for purposes of

sentencing. We disagree.

{¶24} First, appellant's argument is barred by res judicata. As noted supra,

appellant failed to file a direct appeal of his convictions and sentences, instead

bootstrapping a number of issues to an appeal from his “motion for sentencing.” The

allied-offenses argument could and should have been raised upon direct appeal and is

now barred. “Under the doctrine of res judicata, a final judgment of conviction bars the

defendant from raising and litigating in any proceeding, except an appeal from that

judgment, any defense or any claimed lack of due process that the defendant raised or

could have raised at the trial which resulted in that judgment of conviction or on appeal

from that judgment.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967); State v.

Szefcyk, 77 Ohio St.3d 93, 1996–Ohio–337, 671 N.E.2d 233, syllabus. See also, State
Stark County, Case No. 2015CA00137 7

v. Winters, 5th Dist. Muskingum No. CT2015-0029, 2016-Ohio-622, ¶ 23, citing State v.

Jones, 5th Dist. Richland No. 12CA22, 2012–Ohio–4957 and State v. Barfield, 6th Dist.

No. Nos. L–06–1262, L–06–1263, 2007–Ohio–1037, ¶ 6 [appellant's argument regarding

allied offenses could have been raised on direct appeal from the trial court's sentencing

entry and res judicata applies even though appellant never pursued a direct appeal].

{¶25} Second, as appellee points out, appellant’s argument also fails

substantively. In this case, appellant pulled a weapon on a victim and demanded money.

When the victim failed to comply, appellant struck him in the head causing serious

physical harm.

{¶26} A defendant may be indicted and tried for allied offenses of similar import,

but may be sentenced on only one of the allied offenses. State v. Carr, 5th Dist. Perry No.

15-CA-00007, 2016-Ohio-9, --N.E.3d--, ¶ 42, citing State v. Brown, 119 Ohio St.3d 447,

2008–Ohio–4569, 895 N.E.2d 149, ¶ 42. R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in two or

more offenses of the same or similar kind committed separately or

with a separate animus as to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them.
Stark County, Case No. 2015CA00137 8

{¶27} It is well-established that the commission of aggravated robbery does not

automatically result in the commission of felonious assault. State v. Preston, 23 Ohio

St.3d 64, 65-66, 491 N.E.2d 685 (1986); see also, State v. Richards, 5th Dist. Stark No.

2002CA00057, 2002-Ohio-6847, ¶ 19 [felonious assault and aggravated robbery are not

allied offenses of similar import as a defendant can commit aggravated robbery without

committing felonious assault, and vice versa].

{¶28} Appellant’s fourth assignment of error is overruled.

CONCLUSION

{¶29} Appellant’s four assignments of error are overruled and the judgment of the

Stark County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.