[Cite as State v. O'Neal,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. CT11-0034 : : KEITH M. O’NEAL, SR. : OPINION

Defendant-Appellant

CHARACTER OF PROCEEDING: Criminal Appeal from Muskingum County Court of Common Pleas Case No. CR2008-0090

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 29, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX KEITH M. O’NEAL, SR. Prosecuting Attorney Inmate #585-475 Muskingum County, Ohio Ross Correctional Institution P.O. Box 7010 BY: RON WELCH Chillicothe, Ohio 45601-7010 Assistant Prosecuting Attorney Muskingum County, Ohio 27 North Fifth Street Zanesville, Ohio 43701 [Cite as State v. O'Neal,

.]

Edwards, J.

{¶1} Defendant-appellant, Keith O’Neal, Sr., appeals from the July 27, 2011,

Journal Entry of the Muskingum County Court of Common Pleas denying his Motion to

Correct Invalid Sentence and his Motion to Vacate Conviction and Sentence. Plaintiff-

appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On April 3, 2008, the Muskingum County Grand Jury indicted appellant on

one count of aggravated robbery in violation of R.C. 2911.01(A)(3), a felony of the first

degree, one count of theft in violation of R.C. 2913.02(A)(1), a felony of the fifth degree,

and one count of theft of a credit card in violation of R.C. 2913.02(A)(1), a felony of the

fifth degree. At his arraignment on April 9, 2008, appellant entered a plea of not guilty to

the charges.

{¶3} Subsequently, a jury trial commenced on June 3, 2008. After hearing all of

the evidence, the jury, on June 3, 2008, convicted appellant of all counts. As

memorialized in an Entry filed on July 14, 2008, appellant was sentenced to an

aggregate prison term of twelve years.

{¶4} Pursuant to an Opinion filed on September 29, 2009 in State v. O'Neal, 5th

Dist. No. 08-CA-42,

, this Court affirmed the judgment of the trial court.

{¶5} Thereafter, on March 12, 2010, appellant filed a Motion for De Novo

Sentencing Hearing. Appellant, in his motion, argued that his sentence was void

because the trial court had failed to advise him of the consequences for violating post- Muskingum County App. Case No. CT11-0034 3

release control. Pursuant to a Journal Entry filed on March 17, 2010, the trial court

denied appellant's motion. Appellant then appealed.1

{¶6} On June 4, 2010, appellant filed a Motion to Vacate Judgment and

Sentence. Appellant, in his motion, argued that the verdict forms in his case did not

comply with R.C. 2945.75(A)(2) because they did not contain the degree of the offenses

or state that such additional element or elements were present. Appellant maintained

that he was entitled to be resentenced to the least degree of the offense charged. As

memorialized in a Journal Entry filed on June 10, 2010, such motion was denied.

{¶7} Thereafter, on June 25, 2010, appellant filed a Motion to Correct Invalid

Sentence. Appellant, in such motion, argued that the verdict forms in his case did not

comply with R.C. 2945.75(A)(1) and that, therefore, he was entitled to be “resentenced

to the least degree of the offense charged in accordance with R.C. 2945.75(A)(2),…”

{¶8} On October 4, 2010, appellant filed a Motion to Vacate Conviction and

Sentence, arguing again that his verdict forms did not comply with R.C. 2945.75.

Pursuant to a Journal Entry filed on July 27, 2011, the trial court denied both appellant’s

June 25, 2010 Motion to Correct Invalid Sentence and his October 4, 2010 Motion to

Vacate Conviction and Sentence.

{¶9} Appellant now raises the following assignments of error on appeal:

{¶10} “I. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL

UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

1 th Pursuant to an Opinion filed on December 15, 2010, in State v. O’Neal, 5 Dist. No. CT2010-0015,

, this Court affirmed the judgment of the trial court. Muskingum County App. Case No. CT11-0034 4

CONSTITUTION BASED ON THE FACT THAT THE JURY’S VERDICT FORM’S (SIC)

ARE INSUFFICIENT TO SUPPORT THE CONVICTION.

{¶11} “II. APPELLANT WAS DENIED DUE PROCESS AND A FAIR TRIAL

UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION AND THE FIFTH,

SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION IN THE FORM OF THE TRIAL COURT SENTENCING THE

DEFENDANT FOR OFFENSE WITH WHICH HE WAS NOT CONVICTED OF BY A

JURY.”

I, II

{¶12} Appellant, in his two assignments of error, argues that the verdict forms in

his case were defective because they did not state the level of the offense of which he

was convicted or that such additional element or elements were present as required by

R.C. 2945.75(A). Appellant maintains, that, for such reason, he is entitled to be

resentenced to the least degree of the offenses charged in accordance with R.C.

2945.75(A)(2).

{¶13} R.C. 2945.75 states, in relevant part, as follows: “(A) When the presence

of one or more additional elements makes an offense one of more serious degree:…“(2)

A guilty verdict shall state either the degree of the offense of which the offender is found

guilty, or that such additional element or elements are present. Otherwise, a guilty

verdict constitutes a finding of guilty of the least degree of the offense charged.”

{¶14} As recently held by this Court in State v. Miller, 5th Dist. No. 2011-CA-

00074,

: “The Supreme Court of Ohio has interpreted this statute to

provide the requirements for what must be included in a jury verdict form. State v. Muskingum County App. Case No. CT11-0034 5

Pelfrey,

, 860 N.E .2d 735, 2007–Ohio–256 at ¶ 14. The Pelfrey

Court held that ‘pursuant to the clear language of R.C. 2945.75, a verdict form signed

by a jury must include either the degree of the offense of which the defendant is

convicted or a statement that an aggravating element has been found to justify

convicting a defendant of a greater degree of a criminal offense.’

See also, State v.

Nethers, Licking App. No. 07 CA 78, 2008–Ohio–2679 at ¶ 51.

{¶15} “In Pelfrey, the jury found him guilty, and he was sentenced on the third-

degree felony conviction to serve four years in prison. The Second District Court of

Appeals affirmed Pelfrey's conviction, rejecting a manifest-weight-of-the-evidence

argument. State v. Pelfrey, Montgomery App. No. 19955, 2004–Ohio–3401. The court

of appeals subsequently granted Pelfrey's application to reopen the appeal under

App.R. 26(B). Pelfrey argued that the trial court had erred in entering a conviction of a

third-degree felony because the verdict form and the trial court's subsequent verdict

entry were inadequate to support a conviction of tampering with government records.

Instead, Pelfrey argued that he could have been convicted only of the misdemeanor

offense of tampering with records. See R.C. 2913.42(B)(2).

{¶16} “The Second District Court of Appeals agreed with Pelfrey's argument and

stated, “ ‘Pelfrey's failure to raise this defect at trial did not waive it, and the fact that the

indictment and jury instructions addressed the government-records issue did not cure

the non-compliance with R.C. 2945.75(A)(2).’ “ State v. Pelfrey, Montgomery App. No.

19955, 2005–Ohio–5006,

, ¶ 23, quoting State v. Woullard,

, 2004–Ohio–3395,

, ¶ 23.(Emphasis added). The court of

appeals held that ‘the trial court was required to enter a conviction for first-degree Muskingum County App. Case No. CT11-0034 6

misdemeanor tampering with records, which is the least degree of the offense under

R.C. § 2913.42.’ Id. The Ohio Supreme Court in Pelfrey agreed that he did not waive

the error by failing to raise it in the trial court. 112 Ohio St.3d 425–426,

, 2007–Ohio–256 at ¶ 14. (Emphasis added).

{¶17} “‘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 * * * 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 any appeal from that judgment.’ State v. Svefcyk (1996),

, syllabus.

{¶18} “In the present case, appellant did not seek to present his arguments as a

timely direct appeal; rather he filed a motion to correct a void sentence subsequent to

the time when he could have raised the issue in a direct appeal. We find no reason to

override the general rule in Ohio that a trial court has no authority to reconsider a valid

final judgment in a criminal case. State v. Brown, 5th District No. 09–CA–137, 2010-

Ohio–2757 at ¶ 19, citing State v. Moore, 4th Dist. No. 03CA18, 2004–Ohio–3977.

{¶19} “As this Court has previously noted, Pelfrey applies only in a procedural

posture of a direct appeal. State v. Branco, Stark App. No. 2010–CA–00098, 2010–

Ohio–3856 at ¶ 14; State v. Brown, Richland App. No. 09–CA–137, 2010–Ohio–2757 at

¶ 17. In the case at bar appellant could have, but did not, raise this issue in Miller 1 or

even in Miller 2, supra. Appellant had the opportunity to raise this issue on direct

appeal, but, unlike the defendant in Pelfrey, he failed to do so. The doctrine of res

judicata bars appellant from raising this issue anew via a motion to vacate a sentence. Muskingum County App. Case No. CT11-0034 7

State v. Foy, Stark App. No. 2009–CA–00239, 2010–Ohio–2445 at ¶ 8.” Id at

paragraphs 17-22.

{¶20} Because, in the case sub judice, appellant could have raised his claims on

direct appeal and did not do so, we find that the doctrine of res judicata is applicable

and that the trial court did not err in denying appellant’s motions.

{¶21} Appellant’s two assignments of error are, therefore, overruled.

{¶22} Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

______________________________

______________________________

______________________________

JUDGES

JAE/d1031 [Cite as State v. O'Neal,

.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : KEITH M. O’NEAL, SR. : : Defendant-Appellant : CASE NO. CT11-0034

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Muskingum County Court of Common Pleas is affirmed. Costs

assessed to appellant.

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JUDGES