State v. Wooden

[Cite as State v. Wooden, 2023-Ohio-3624.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 112069
v. :

JYVARIS WOODEN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 5, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634212-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Owen Knapp, Assistant Prosecuting
Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Jonathan Sidney, Assistant Public Defender, for
appellant.

EILEEN A. GALLAGHER, J.:

Defendant-appellant Jyvaris Wooden appeals his convictions for

attempted murder with a firearm specification and attempted felonious assault, for

which the trial court imposed an aggregate 14-year prison sentence.
 This court has twice remanded Wooden’s matter to the trial court to

correct various aspects of the sentence. This court dismissed his first appeal for lack

of a final, appealable order because the trial court failed to impose a sentence on the

attempted felonious assault count to which Wooden pleaded guilty. State v.

Wooden, 8th Dist. Cuyahoga No. 109170, Motion No. 541878 (Oct. 22, 2020)

(“Wooden I”). The trial court corrected the error at a resentencing hearing,

sentencing Wooden to a prison sentence of 14 years for attempted murder and 24

months for attempted felonious assault. The court ran the sentences consecutively.

Wooden appealed his convictions again. On that direct appeal, this

court affirmed the convictions but vacated Wooden’s sentences because the trial

court failed to provide the violent-offender notice required by Sierah’s Law. State v.

Wooden, 8th Dist. Cuyahoga No. 110340, 2022-Ohio-814, ¶ 29 (“Wooden II”). This

court found Wooden’s arguments regarding the consecutive nature of the sentences

were moot. Id. at ¶ 30.

In this third appeal, we must decide whether Wooden may raise an

allied-offenses error in this appeal despite failing to raise the error in his first two

appeals. If we find that he may, we must then decide whether the trial court erred

by sentencing Wooden on both attempted murder and attempted felonious assault,

over Wooden’s objection, at the second resentencing hearing that those were allied

offenses.

For the reasons that follow, we affirm.
I. Factual Background and Procedural History

This court summarized the underlying facts as follows in Wooden’s

second appeal:

On October 30, 2018, Wooden and the victim got into an altercation
after the victim, while driving a lawnmower, hit a wooden plank erected
to indicate Wooden’s property line. Wooden, an army veteran with a
history of post-traumatic stress disorder and childhood trauma, not
only activated his home alarm system, he approached the victim with a
baseball bat and firearm. A public utility worker saw Wooden swing
the bat at the victim twice before struggling with the victim, who
attempted to disarm Wooden. During the struggle, Wooden shot the
victim in the abdomen. Wooden then used his home alarm system to
call 911 and explained that he shot the victim because he was
trespassing on Wooden’s property.

Wooden II, 8th Dist. Cuyahoga No. 110340, 2022-Ohio-814, at ¶ 2.

On November 7, 2018, a Cuyahoga County Grand Jury indicted

Wooden on (1) one count of attempted murder in violation of R.C. 2923.02 and

2903.02(A) with one- and three-year firearm specifications; (2) one count of

felonious assault in violation of R.C. 2903.11(A)(1) with one- and three-year firearm

specifications; (3) one count of felonious assault in violation of R.C. 2903.11(A)(2)

with one- and three-year firearm specifications and a statement that Wooden used

a firearm to commit the offense and (4) one count of felonious assault in violation of

R.C. 2903.11(A)(2) with a statement that Wooden used a baseball bat to commit the

offense.

Wooden pleaded guilty to an amended count one and an amended

count four. Specifically, he pleaded guilty to attempted murder with a three-year

firearm specification and a forfeiture specification and to attempted felonious
assault in violation of R.C. 2923.02 and 2903.11(A)(2). The remaining counts and

specifications were dismissed.

On September 21, 2022, after this court decided Wooden II, affirming

the convictions but remanding the matter based on a notification error at the first

resentencing hearing, the trial court held a second resentencing hearing. Prior to

the second resentencing hearing, Wooden objected for the first time to the

imposition of compound sentences on the attempted murder and attempted

felonious assault offenses. He argued at the second resentencing hearing that those

were allied offenses that should be merged.

With respect to this argument, the trial court stated as follows at the

second resentencing hearing:

I find that Count 1 and Count 4 are dissimilar crimes of import and are
not allied offenses pursuant to the facts that are clear in the record of
this case and incorporating all of the statements made by the victim,
the presentence investigation report, prior arguments of counsel,
incorporating those arguments again in this hearing * * *.

The trial court then sentenced Wooden to 14 years in prison on the

attempted murder offense (three years for the firearm specification and 11 years on

the underlying felony) and to three years in prison on the attempted felonious

assault offense. The court ran the sentences concurrently, for an aggregate 14-year

prison sentence.
 Wooden appealed, raising the following assignment of error for

review:

The trial court erred in entering convictions on multiple counts in
violation of Mr. Wooden’s right to trial by jury under the United States
and Ohio Constitutions.

II. Law and Analysis

Our consideration of the state’s argument regarding res judicata is

dispositive of this appeal.

“The doctrine of res judicata establishes that ‘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 at the trial, which resulted in that judgment of conviction, or on an appeal

from that judgment.’” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951

N.E.2d 381, ¶ 30, quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),

paragraph nine of the syllabus. The “doctrine serves to preclude a defendant who

has had his day in court from seeking a second on that same issue.” State v. Saxon,

109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 18. This “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.

Res judicata applies to the issue of whether two offenses constitute

allied offenses subject to merger. See, e.g., State v. Poole, 8th Dist. Cuyahoga No.
94759, 2011-Ohio-716, ¶ 13. Even when a defendant’s sentence is vacated on direct

appeal, res judicata can bar the defendant from litigating a merger argument

regarding the convictions at the resentencing hearing. See State v. Phillips, 8th Dist.

Cuyahoga No. 98487, 2013-Ohio-1443, ¶ 3, 5–7; State v. Craig, 5th Dist. Licking No.

2005CA16, 2005-Ohio-5300, ¶ 6, 14; State v. Collins, 8th Dist. Cuyahoga No. 97496,

2012-Ohio-3687, ¶ 9; State v. Smith, 1st Dist. Hamilton No. C-190473, 2020-Ohio-

4977, ¶ 5.

Wooden’s first appeal raised three assignments of error, none of

which asserted an allied-offenses error. Wooden’s second appeal raised six

assignments of error, yet he still did not challenge the trial court’s decision to

sentence him on both the attempted murder and attempted felonious assault

offenses.

The state argues that because Wooden did not raise an allied offenses

error in either of his first two appeals, the argument is now barred. Wooden

responds that he may raise the argument because his first appeal was dismissed for

lack of a final, appealable order and because this court vacated his sentences in the

second appeal and new sentences were imposed at the second resentencing hearing.

We agree with the state that Wooden’s argument is barred by res judicata.

Wooden’s first appeal presents no bar. As this court determined in

Wooden I, there was no final, appealable order at the time of Wooden’s first appeal.

See Wooden II, 8th Dist. Cuyahoga No. 110340, 2022-Ohio-814, at ¶ 10. Res

judicata only bars a party “from relitigating the same issue or claim that has already
been decided in a final, appealable order or a valid, final judgment in a prior

proceeding and could have been raised on appeal in that prior proceeding.” AJZ’s

Hauling, L.L.C. v. Trunorth Warranty Programs of N. Am., Slip Opinion No. 2023-

Ohio-3097, at ¶ 15. Because the merger issue had not been decided in a final,

appealable order at the time of Wooden’s first appeal, the trial court’s first

sentencing entry and Wooden’s first appeal do not bar litigation of the issue in this

appeal.

Wooden’s second appeal, on the other hand, prevents our

consideration of the trial court’s decision not to merge the offenses.

A trial court “determine[s] whether offenses are allied offenses under

R.C. 2941.25(A) prior to sentencing by examining the underlying convictions

(elements of the offenses) and the facts of the case.” (Emphasis in original.) State

v. Smith, 3d Dist. Marion No. 9-11-36, 2012-Ohio-1891, ¶ 22, citing State v. Johnson,

128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 47 (plurality opinion); see

also Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, at ¶ 13 (“Although * * *

the issue of merger clearly affects a defendant’s sentencing disposition, the question

of whether the verdicts on all counts can be used to support separate convictions for

all offenses charged is decided by the trial court prior to its determination of a

defendant’s sentence.”).

“As a general rule, ‘when a trial court finds that convictions are not

allied offenses of similar import, or when it fails to make any finding regarding

whether the offenses are allied, imposing a separate sentence for each offense is not
contrary to law and any error must be asserted in a timely appeal or it will be barred

by principles of res judicata.’” State ex rel. Romine v. McIntosh, 162 Ohio St.3d 501,

2020-Ohio-6826, 165 N.E.3d 1262, ¶ 13, quoting State v. Williams, 148 Ohio St.3d

403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 26.

Wooden did not argue at the first resentencing hearing that these

offenses should merge. The trial court imposed sentences on both offenses without

making a specific finding regarding whether the offenses were allied. The trial

court’s second sentencing journal entry, retaining the trial court’s decision not to

merge the offenses, was a final, appealable order. Wooden filed a direct appeal from

that order and raised six assignments of error, none of which asserted a merger

error.

While this court vacated Wooden’s sentences, it did so based solely

on the trial court’s failure to provide certain Sierah’s Law notices (regarding the

violent-offender-database registration) mandated by R.C. 2903.42(A)(1). This court

“remand[ed] the matter for the trial court to provide Wooden with the proper notice

* * *.” Wooden II, 8th Dist. Cuyahoga No. 110340, 2022-Ohio-814, at ¶ 29.

Wooden’s convictions, including the trial court’s merger decision, were left standing.

This court has rejected attempts to raise the issue of allied offenses

for the first time at a resentencing hearing under similar circumstances, as when a

sentence is vacated for failure to properly notify a defendant of matters related to

postrelease control. See State v. Phillips, 8th Dist. Cuyahoga No. 98487, 2013-Ohio-

1443, ¶ 3, 5–7; State v. Allen, 8th Dist. Cuyahoga No. 97552, 2012-Ohio-3364, ¶ 20,
citing State v. Padgett, 8th Dist. Cuyahoga No. 95065, 2011-Ohio-1927; State v.

Woods, 8th Dist. Cuyahoga No. 96487, 2011-Ohio-5825; State v. Ballou, 8th Dist.

Cuyahoga No. 95733, 2011-Ohio-2925. Moreover, “[t]he imposition of compound

sentences for allied offenses is an error in the exercise of [a trial court’s subject-

matter] jurisdiction, to be challenged at sentencing and remedied on direct appeal.”

McIntosh at ¶ 15; see also Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, at

¶ 13 (stating that “the time to challenge a conviction based on allied offenses is

through a direct appeal — not at a resentencing hearing”); State v. Padgett, 8th Dist.

Cuyahoga No. 95065, 2011-Ohio-1927, ¶ 8.

Wooden did not challenge the imposition of compound sentences at

the first resentencing hearing and failed to raise the alleged error in the previous

direct appeal from the trial court’s sentence. His assignment of error in this appeal

is thus barred by res judicata. We, therefore, overrule it.

III. Conclusion

Having overruled Wooden’s sole assignment of error for the reasons

stated above, we affirm.

It is ordered that the appellee recover from the appellant the 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

Cuyahoga County Court of Common Pleas 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.

_________________________
EILEEN A. GALLAGHER, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and
EMANUELLA D. GROVES, J., CONCUR