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Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98400
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SIDNEY KING
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-533345
BEFORE: S. Gallagher, J., Blackmon, A.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: December 13, 2012
FOR APPELLANT
Sidney King, pro se
Inmate No. 582-725
Mansfield Correctional Institution
1150 North Main Street
Mansfield, OH 44903
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: John Hanley
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1, the trial court records, and briefs of the parties.
Appellant, Sidney King, appeals from the decision of the Cuyahoga County Court of
Common Pleas that denied his pro se motion for resentencing. For the reasons stated
herein, we affirm.
{¶2} King was indicted on multiple counts on January 29, 2010. He pleaded
guilty to one count each of felonious assault with a three-year firearm specification and a
forfeiture specification, domestic violence, having a weapon while under disability with a
forfeiture specification, endangering children, and resisting arrest with a forfeiture
specification. On or about March 22, 2010, the trial court sentenced King to a total
prison term of 14 years with five years of mandatory postrelease control, and the court
ordered King to forfeit a revolver. King did not file a direct appeal.
{¶3} On May 10, 2012, King filed a pro se motion for resentencing. The trial
court denied the motion, and King filed this appeal.
{¶4} King raises one assignment of error that claims his constitutional rights were
violated because the trial court failed to consider whether his sentence was consistent
with sentences imposed for similar crimes committed by similar offenders. Because
King has forfeited his ability to raise this issue, we must reject his challenge.
{¶5} Initially, we find that King’s challenge is barred by res judicata. “Res
judicata bars the assertion of claims against a valid, final judgment of conviction that
have been raised or could have been raised on appeal.” State v. Ketterer,
(1967), paragraph nine of the syllabus. Because King could have raised the
issue on direct appeal, but failed to do so, res judicata bars him from raising this challenge
more than two years after his sentence was imposed. See State v. Gilmore, 8th Dist. No.
97884,
2012-Ohio-3962, ¶ 20-21
; State v. Poole, 8th Dist. No. 96921,
2012-Ohio-2622, ¶
20
.
{¶6} Furthermore, this court has recognized that in order to preserve a
proportionality or consistency challenge for appeal, a defendant must raise the issue and
present some evidence about similar offenders and their sentences to the trial court.
State v. Wilson, 8th Dist. No. 97657,
2012-Ohio-4153, ¶ 15
. Because no transcript has
been provided on appeal, we must presume regularity in the proceedings. Knapp v.
Edwards Laboratories,
(1980). Moreover, there
is nothing to indicate that King raised the issue or presented any evidence about similar
offenders and their sentences to the trial court. As a result, King failed to preserve the
issue for review and we must overrule King’s sole assignment of error.
{¶7} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
