[Cite as State v. Evans ,
2021-Ohio-347.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
PICKAWAY COUNTY
STATE OF OHIO, :
: Case No. 20CA2
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
DION M. EVANS, :
:
Defendant-Appellant. : RELEASED: 02/03/2021
_____________________________________________________________
APPEARANCES:
Jerry L. McHenry, for Appellant.
Judy C. Wolford, Pickaway County Prosecuting Attorney, for Appellee.
____________________________________________________________
Wilkin, J.
{¶1} This is an appeal from a Pickaway County Court of Common Pleas
judgment that vacated Appellant, Dion M. Evans’, 20-month sentence for
violating postrelease control. On appeal, Appellant asserts two assignments of
error: (1) the trial court erred in failing to acknowledge his pro se objections
during his resentencing hearing, and (2) the trial counsel rendered ineffective
assistance of counsel. After reviewing the record and the applicable law, we find
Appellant’s appeal lacks merit. Therefore, we affirm the trial court’s judgment.
BACKGROUND
{¶2} This case has a long and convoluted procedural history, most of
which is unnecessary to resolve this appeal; therefore, we provide only a
condensed version in this decision.
Pickaway App. No. 20CA2 2
{¶3} In 2001, Appellant pleaded guilty to burglary in Franklin County and
the trial court sentenced him to three years of community control, and informed
him that if he violated community control he could be sentenced up to eight years
in prison. State v. Evans, 4th Dist. Pickaway No. 15CA33, 2017-Ohio-1577,
90
N.E.3d 11, ¶ 2. However, in 2004, the Franklin County Court of Common Pleas
revoked Appellant’s community control and sentenced him to two years in prison.
Id. at ¶ 3. The trial court notified Appellant that he would be subject to
postrelease control (“PRC”), but did not inform Appellant of the length of the
PRC, or the consequences if he violated PRC. Id. at ¶ 3.
{¶4} In 2006, Appellant was convicted of burglary, theft, failure to comply
with an officer, safe cracking, and receiving stolen property in the Pickaway
County Court of Common Pleas. Id. ¶ 4. In addition to sentencing Appellant for
these five offenses, the trial court noted at the time that Appellant committed
these offenses he was on PRC from his 2004 Franklin County conviction. Id.
Consequently, the trial court imposed an additional 20 months in prison for
Appellant’s violation of PRC. Id.
{¶5} Over the next several years, Appellant filed numerous motions in the
Pickaway County Court of Common Pleas arguing the PRC portion of the 2004
Franklin County sentence was void because the trial court did not inform him of
the consequences of violating PRC. Evans at ¶ 6-10. Therefore, he argued, the
20-month sentence that the Pickaway County Court of Common Pleas imposed
for violating PRC was void.
Id.
Pickaway App. No. 20CA2 3
{¶6} In December 2015, the Pickaway County Court of Common Pleas
sua sponte issued a judgment stating that it lacked jurisdiction to rule on
Appellant’s 2004 Franklin County conviction that imposed the PRC. Id. at ¶ 12.
However, on appeal, this court held that the PRC imposed in Appellant’s 2004
Franklin County conviction did not comply with the PRC notification requirements
in R.C. 2929.19(B)(2). Id. at ¶ 20. Consequently, we held the 20-month
sentence imposed in Appellant’s 2006 Pickaway County case for violating PRC
imposed in Appellant’s 2004 Franklin County conviction was void, and remanded
the matter to the trial court to vacate that sentence, but “emphasized” the
remainder of “appellant’s sentence should remain intact.” Id. at ¶ 21.
{¶7} On remand the trial court held a hearing and vacated the 20-month
sentence. During the hearing, the trial judge asked Appellant if he had anything
to say. Appellant first thanked the trial court for following the mandate from the
court of appeals. He then asserted several “objections” pertaining to his
underlying conviction, including that the trial court should have merged certain
offenses for sentencing. The trial court did not respond to Appellant’s objections,
but noted that our remand was only to vacate his 20-month sentence, not his
remaining sentence. The trial court subsequently issued a judgment vacating
Appellant’s 20-month sentence for violating PRC. It is from this judgment that
Appellant appeals, asserting two assignment of error.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED WHEN IT FAILED TO RULE UPON
PRO SE APPELLANT’S OBJECTIONS AT THE RESENTENCING
HEARING VIOLATING HIS RIGHT TO A FULL AND FAIR
HEARING
Pickaway App. No. 20CA2 4
II. THE TRIAL COURT’S FAILURE TO ANSWER PRO SE
APPELLANT’S OBJECTIONS DENIED HIM OF HIS RIGHT TO
COUNSEL, FAIR TRIAL, DUE PROCESS, AND CRUEL AND
UNUSUAL PUNISHMENT
ASSIGNMENT OF ERROR I
{¶8} Appellant argues that during the re-sentencing hearing, the trial
court’s failure to rule on his personal objections deprived him of a full and fair
hearing.
{¶9} Initially, we note that “Ohio courts need not address pro se motions
when the defendant enjoys the benefit of counsel.” State v. Vance, 4th Dist.
Jackson No. 16CA11, 2018-Ohio-1313, ¶ 27, citing State v. Smith, 4th Dist.
Highland No. 09CA29,
2010-Ohio-4507, ¶ 100. We find the same logic applies
to questions asked by a defendant in a hearing, who is represented by counsel.
Therefore, we find that Appellant had no right to personally make objections to
the trial court, nor was the trial court obligated to respond to such objections.
{¶10} Further, pursuant to 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 at the trial, which resulted in that
judgment of conviction, or on an appeal from that judgment.”
State v. Straley, 159 Ohio St. 3d 82,
2019-Ohio-5206,
147
N.E.3d 623, ¶ 35, quoting State v. Perry,
10 Ohio St.2d 175,
226
N.E.2d 104 (1967), paragraph nine of the syllabus.
{¶11} Appellant’s “objections” addressed errors pertaining to his 2006
convictions in Pickaway County. These issues could have been addressed in
Pickaway App. No. 20CA2 5
Appellant’s direct appeal of those convictions. Therefore, raising these issues
years later in this remand hearing was barred by res judicata.
{¶12} Finally, this case was remanded with a mandate limited to correcting
the unlawfully imposed 20-month sentence and that was accomplished. The
purpose of the hearing on remand was not to hear additional issues.
{¶13} Accordingly, we overrule Appellant’s first assignment of error.
ASSIGNMENT OF ERROR II
{¶14} Appellant alleges that his counsel was ineffective for failing to raise
the objections that Appellant raised personally with the trial court.
{¶15} “To establish constitutionally ineffective assistance of counsel, a
criminal defendant must show (1) that his or her counsel's performance was
deficient and (2) that the deficient performance prejudiced the defense and
deprived him or her of a fair trial.” State v. Thacker, 4th Dist. Lawrence No.
18CA21, 2020-Ohio-4620, ¶ 84, citing Strickland v. Washington,
466 U.S. 668,
687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). “To prevail on a claim of ineffective
assistance of counsel, [an appellant] must show (1) [their] counsel's performance
was deficient in that it fell below an objective standard of reasonable
representation, and (2) the deficient performance prejudiced [their] defense so as
to deprive [him or her] of a fair trial.” State v. Jones, 4th Dist. Scioto No.
6CA3116,
2008-Ohio-968, ¶ 14, citing State v. Smith,
89 Ohio St.3d 323, 327,
731 N.E.2d 645 (2000). Failure to establish either element is fatal to the
claim.
Id., citing Strickland.
Pickaway App. No. 20CA2 6
{¶16} As we found in analyzing Appellant’s first assignment of error,
Appellant’s personal objections that he communicated directly to the trial court
lacked merit for several reasons, including that they were barred by res judicata.
Therefore, we find that Appellant’s counsel’s failure to raise these issues at the
hearing was neither deficient performance by him, nor was Appellant prejudiced
by his failure to raise Appellant’s objections with the court. Accordingly, we
overrule Appellant’s second assignment of error.
CONCLUSION
{¶17} Having overruled both of Appellant’s assignments of error, we affirm
the trial court’s judgment.
JUDGMENT AFFIRMED
Pickaway App. No. 20CA2 7
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed
to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Pickaway County Common Pleas Court 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.
Smith, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
