2012 OHIO 1827 - State v. Johnson

[Cite as State v. Johnson,

2012-Ohio-1827

.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96064




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  CHARLES JOHNSON
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  APPLICATION DENIED


                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-539760
                                   Application for Reopening
                                      Motion No. 450122


        RELEASE DATE: April 25, 2012
FOR APPELLANT

Charles Johnson, pro se
Inmate No. 593-732
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Charles Johnson has filed a timely application for reopening pursuant to

App.R. 26(B). Johnson is attempting to reopen the appellate judgment, as rendered in

State v. Johnson, 8th Dist. No. 96064,

2011-Ohio-4954

, which affirmed his plea of guilty

and sentence of incarceration with regard to one count of attempted intimidation of a

crime witness or witnesses and one count of menacing by stalking.

       {¶2} In his application for reopening, Johnson argues three proposed assignments

of error in support of his claim of ineffective assistance of appellate counsel. Johnson

raises three issues through his proposed assignments of error: (1) improperly convicted of

attempted intimidation; (2) criminal case was improperly charged in Cuyahoga County,

specifically improper venue, because the telephone calls and mail directed to the victim

were sent from Lorain County; and (3) trial court abused its discretion, during sentencing,

by relying on facts outside of the indictment.

       {¶3} Each of the aforesaid issues, as currently presented by Johnson through his

application for reopening, have been previously raised and addressed through the

underlying appeal. The following issues were raised and addressed upon direct appeal:

(1) assignment of error one — double jeopardy; (2) assignment of error two — allied

offenses of similar import/merger for sentencing; (3) assignment of error three —

improperly convicted of the offense of intimidation; (4) assignment of error four —

improper venue for indictment; (5) assignment of error five — improper sentence based

upon consecutive, maximum sentences; (6) assignment of error six — trial court abused
its discretion by relying upon facts outside of the indictment for sentencing purposes; and

( 7) assignment of error seven — ineffective assistance of trial counsel. The issues

currently argued by Johnson were previously argued and found to be without merit

through assignments of error three, four, and six.

       {¶4} The doctrine of res judicata prevents this court form reopening Johnson’s

appeal. Errors of law that were previously raised on appeal may be barred from further

review vis-a-vis the doctrine of res judicata. State v. Perry,

10 Ohio St.2d 175

226 N.E.2d 104

 (1967). The Supreme Court of Ohio has also established that a claim of

ineffective assistance of appellate counsel may be barred from further review, by the

doctrine of res judicata, unless circumstances render the application of the doctrine

unjust. State v. Murnahan,

63 Ohio St.3d 60

584 N.E.2d 1204

 (1992); State v. Williams,

8th Dist. No. 57988,

1991 WL 21261

 (March 4, 1991), reopening disallowed (Aug. 15,

1994), Motion No. 252614.         Thus, the doctrine of res judicata bars any further

consideration of the issues as raised by Johnson in support of his claim of ineffective

assistance of appellate counsel. State v. Dehler,

73 Ohio St.3d 307

1995-Ohio-320

652 N.E.2d 987

; State v. Terrell,

72 Ohio St.3d 247

1995-Ohio-54

648 N.E.2d 1352

. We

further find that the facts and circumstances, pertinent to this claim of ineffective

assistance of appellate counsel, do not render the application of the doctrine of res

judicata unjust. State v.

Murnahan, supra.


       {¶5} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR