[Cite as State v. Sankey, 2019-Ohio-1947.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-A-0087
- vs - :
ROBERTO SANKEY a.k.a. ROBBIE :
ROYCE SANKEY,
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR
00195.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, 25 West Jefferson Street, Jefferson, Ohio 44047 (For Plaintiff-Appellee).
Roberto Sankey, A693-244, Trumbull Correctional Institution, 5701 Burnett Road, P.O.
Box 640, Leavittsburg, Ohio 44430 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Roberto Sankey, appeals the trial court’s judgment overruling his
postconviction motions to modify sentence and to withdraw his guilty plea. We affirm.
{¶2} Sankey raises two assigned errors:
{¶3} “[1.] The material and essential facts constituting an offense are found by
the presentment of the grand jury; and if one of the vital and material elements identifying
and characterizing the crime has been omitted from the indictment such defective
indictment is insufficient to charge an offense and cannot be cured by the court, and as
such a procedure would not only violate the constitutional rights of the accused, but would
allow the court to convict him on a defective indictment.
{¶4} “[2.] The general sentencing structure in Ohio violates the Eighth
Amendment’s prohibition against cruel and unusual punishment. He claims that
sentencing judges are afforded too much discretion in choosing a prison term in the
designated range and that a new standard is required for examining Eighth Amendment
challenges.”
{¶5} In November 2016, Sankey pleaded guilty to telecommunications fraud,
passing bad checks, grand theft with a specification, and attempted grand theft. He was
represented by counsel and sentenced to five years in prison. Sankey did not file a direct
appeal.
{¶6} In 2018, Sankey moved the court to modify his sentence and to withdraw
his guilty plea.
{¶7} Both of Sankey’s motions argue that his indictment was defective, and as a
result, he was convicted of a higher offense than was charged. He claims the indictment
and bill of particulars state that the amount of the theft on or about January 15, 2013,
totaled $220,872.82, but in actuality, the charged amount stolen on this date was only
$5,363.34. Consequently, he claims his conviction for theft, a second-degree felony,
should have been a fourth-degree felony, and he should have received a lower sentence.
{¶8} The trial court overruled his motions in its October 9, 2018 decision, noting
that it found no errors in the plea or sentencing entries. The trial court also deemed
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Sankey’s arguments barred by res judicata because he could have raised them via direct
appeal. We agree.
{¶9} “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 * * *, which resulted
in that judgment of conviction, or on an appeal from that judgment.” (Citations omitted.)
State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233 (1996), syllabus.
{¶10} As stated, Sankey pleaded guilty and did not file a direct appeal from his
conviction. Yet the argument he now raises is based on a document, i.e., exhibit A
attached to the indictment, that was in the record when he entered his plea and was
convicted. Accordingly, because he could have raised this issue on appeal,
res judicata bars Sankey from raising the issue now. Id.
{¶11} Accordingly, Sankey’s first assignment of error lacks merit.
{¶12} As for Sankey’s second assigned error, which argues that Ohio’s
sentencing structure violates the prohibition against cruel and unusual punishment, this
issue was not raised by Sankey in his pending motions before the trial court.
{¶13} The failure to raise a constitutional argument to the trial court generally
constitutes a waiver of the issue on appeal. State v. Benner, 9th Dist. Summit No. 18094,
1997 WL 549605, *1, citing State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986),
syllabus.
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{¶14} Furthermore, res judicata also applies to this argument because Sankey
could have raised this issue in a direct appeal. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d
233 (1996), syllabus. Sankey’s second assigned error lacks merit and is overruled.
{¶15} The trial court’s judgment is affirmed.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.
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