[Cite as State v. Robinson,
2025-Ohio-2026.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: C.A. No. 30316
Appellee :
: Trial Court Case No. 2016 CR 02654
v. :
: (Criminal Appeal from Common Pleas
KENDRICK ROBINSON : Court)
:
Appellant : FINAL JUDGMENT ENTRY &
: OPINION
...........
Pursuant to the opinion of this court rendered on June 6, 2025, the judgment of the
trial court is affirmed.
Costs to be paid as stated in App.R. 24.
Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately
serve notice of this judgment upon all parties and make a note in the docket of the service.
Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified
copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note
the service on the appellate docket.
CHRISTOPHER B. EPLEY, PRESIDING JUDGE
MARY K. HUFFMAN, JUDGE
ROBERT G. HANSEMAN, JUDGE
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OPINION
MONTGOMERY C.A. No. 30316
KENDRICK ROBINSON, Appellant, Pro Se
MATHIAS H. HECK, JR., by TRISTAN D. DIEGEL, Attorney for Appellee
HANSEMAN, J.
{¶ 1} Defendant-Appellant, Kendrick Robinson, appeals pro se from a trial court order
overruling his motion for a “Crim.R. 48” final appealable order. In a single assignment of
error, Robinson contends the court abused its discretion in refusing to grant the motion.
{¶ 2} We conclude the trial court did not abuse its discretion in overruling the motion,
which asked the court to dismiss three of Robinson’s criminal charges with prejudice. The
court lacked the ability to do so because it had already dismissed these charges without
prejudice years earlier. Robinson’s motion was also barred by res judicata, since he filed a
direct appeal from the judgment that included dismissal of the charges. In addition,
Robinson’s current motion, if considered a petition for postconviction relief, was untimely.
Furthermore, Robinson previously filed a motion based on the same grounds. After the trial
court denied the motion, Robinson failed to appeal. Res judicata, therefore, applied on this
basis as well. Accordingly, Robinson’s assignment of error lacks merit, and the judgment of
the trial court will be affirmed.
I. Facts and course of proceedings
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{¶ 3} This appeal is from a postconviction motion. The facts underlying the case are
as follows. “On September 1, 2016, Robinson was indicted for two counts of kidnapping in
violation of R.C. 2905.01(A)(3) and (A)(4), one count of rape in violation of R.C.
2907.02(A)(2), two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2),
and one count of aggravated menacing in violation of R.C. 2903.21(A). Except for
aggravated menacing, each of the charges included a repeat violent offender specification.”
State v. Robinson, 2019-Ohio-2943, ¶ 2 (2d Dist.). After Robinson pled not guilty and
counsel was appointed, a jury trial was held, beginning on July 18, 2017.
{¶ 4} “Following deliberations, the jury found Robinson guilty of both felonious assault
charges. However, the jury found Robinson not guilty of aggravated menacing and was
unable to reach a verdict on the charges of kidnapping and rape. Because the jury could not
reach a verdict on those charges, the trial court declared a mistrial as to the kidnapping and
rape charges. The trial court then sentenced Robinson to serve eight years in prison for
each count of felonious assault and ten years in prison for the repeat violent offender
specification. The trial court ordered the sentences to be served consecutively for a total
prison term of 26 years.” Id. at ¶ 14.
{¶ 5} On August 17, 2017, the trial court filed a judgment entry reflecting the
sentence, and Robinson filed a notice of appeal (Montgomery C.A. No. 27703). However,
we dismissed the appeal due to lack of a final appealable order. This was because three
charges remained pending in the trial court, and trial was set for May 7, 2018. See Final
Judgment Entry (Feb. 14, 2018), p. 1-4.
{¶ 6} After the case was remanded, the court continued the trial date to August 20,
2018. However, on August 6, 2018, the State filed a motion asking the court to dismiss
Counts 1, 2, and 3 (two kidnapping charges and one rape charge, all with violent offender
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specifications). According to the State, the victim was unavailable to testify because a
warrant for her arrest was pending, and the State had not been able to find her. The court
then filed an entry dismissing only these three charges and specifications. See Termination
Entry (Aug. 14, 2018). Subsequently, the court filed an amended termination entry repeating
the prior sentences and also dismissing Counts 1, 2, and 3 and their attached specifications,
without prejudice. Amended Termination Entry (Aug. 23, 2018), p. 1-2. Robinson then
appealed (Montgomery C.A. No. 28103).
{¶ 7} In his prior appeal, Robinson raised three assignments of error: (1) error in
admitting hearsay testimony; (2) ineffective assistance of trial counsel in failing to object to
matters during trial and failing to disclose evidence to the State; and (3) lack of sufficient
evidence to support his conviction on both felonious assault charges. Robinson, 2019-Ohio-
2943, at ¶ 1.
{¶ 8} After considering the matter, we overruled all three assignments of error and
affirmed the judgment. Id. at ¶ 92. No further appeal was taken. However, in September
2019, Robinson filed a pro se application for reopening the appeal, claiming ineffective
assistance of appellate counsel. After we denied that application, Robinson filed another pro
se application for reopening in May 2021, again claiming ineffective assistance of appellate
counsel. We denied that application as well because successive applications to reopen are
not permitted. Decision and Entry (July 26, 2021).
{¶ 9} In April 2022, Robinson filed a Civ.R. 60(B) motion in the trial court, seeking to
vacate what he called a “void judgment,” based on ineffective assistance of trial counsel.
The trial court overruled the motion, finding it untimely and also barred by res judicata
because Robinson had raised trial counsel’s ineffectiveness on direct appeal. Decision and
Entry Overruling Defendant's Motion to Vacate Void Judgment (May 23, 2022), p. 2-3. No
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appeal was taken from this decision and entry.
{¶ 10} In May 2024, Robinson filed another motion in the trial court, asking the court
to order the State to dismiss Counts 1-3 and 6 and the attached specifications. Referring to
the court’s “August 17, 2016” Termination Entry (which disposed of counts 4 and 5),
Robinson argued the entry was non-final and not a final appealable order. This was a
typographical error, as the entry in question was filed on August 17, 2017. The trial court
rejected Robinson’s motion as moot because the jury had found Robinson not guilty on
Count 6, and the August 14 and August 23, 2018 termination entries disposed of the
remaining matters. Entry and Order Denying Defendant's Motion to Dismiss Counts 1-3 & 6
W/Specs (June 4, 2024), p. 1-2. Robinson did not appeal from this order.
{¶ 11} Robinson filed another motion on July 10, 2024, asking the trial court to issue
a final appealable order on Counts 1-3 so that he could appeal issues associated with those
counts. The court denied the motion, noting that dismissal without prejudice is not a final
order and that it lacked authority to change the manner in which the charges were dismissed.
Decision, Entry and Order Denying Defendant's Motion for Rule 58(B) Final Appealable
Order (July 26, 2024). No appeal was taken from this decision.
{¶ 12} Finally, in October 2024, Robinson filed another motion to dismiss Counts 1,
2, and 3, and the specifications for want of prosecution. The motion was based on Crim.R.
48 and the court’s ability under Civ.R. 58 to issue judgments. The trial court denied the
motion, and Robinson filed a timely notice of appeal.
II. Alleged Abuse of Discretion
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{¶ 13} Robinson’s sole assignment of error, quoted verbatim, states that:
Trial Court Abused Its Discretion in Denying Defendant’s Motion to
Dismiss Charges with Prejudice for Want of Prosecution Pursuant to Crim.R.
48(B).
{¶ 14} Under this assignment of error, Robinson contends the order dismissing the
case without prejudice was interlocutory, and the court therefore had jurisdiction to consider
it. He further complains about the fact that the State has improperly held the charges against
him for seven years when the victim was in custody one-and-a-half months after the State
filed the motion to dismiss on August 6, 2018. In addition, Robinson argues trial courts have
inherent power to dismiss cases for want of prosecution under Crim.R. 48 and that failing to
dismiss the case with prejudice would somehow impair his speedy trial rights. In response,
the State argues that Robinson’s appeal is not ripe for review because it depends on future
events (such as reindictment) that may never happen.
{¶ 15} Crim.R. 48(A) provides that “[t]he state may by leave of court and in open court
file an entry of dismissal of an indictment, information, or complaint and the prosecution shall
thereupon terminate.” Trial courts have discretion to dismiss charges without prejudice.
Beavers v. State, 2019-Ohio-3587, ¶ 21 (2d Dist.). “Concerning dismissal with prejudice, we
have said that ‘since neither Crim.R. 48(A) nor Crim.R. 48(B) expressly provides for a
dismissal with prejudice, a dismissal or nolle with prejudice may be entered only where there
is a deprivation of a defendant's constitutional or statutory rights, the violation of which
would, in and of itself, bar further prosecution.’ . . . In other words, a court may enter a
dismissal with prejudice, but only if a constitutional or statutory violation bars further
prosecution.”
Id., quoting State v. Jones,
2009-Ohio-1957, ¶ 13 (2d Dist.). Accord State v.
Troisi,
2022-Ohio-3582, ¶ 40.
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{¶ 16} Furthermore, “[a] criminal defendant typically cannot appeal the dismissal of
charges against him without prejudice.” State v. Morgan, 2012-Ohio-4750, ¶ 9 (2d Dist.),
citing City of Hudson v. Harger,
2012-Ohio-2604, ¶ 3-8 (9th Dist.). This is because after
dismissal, defendants are placed in the same position they occupied before charges were
filed. Id. at ¶ 8. For this reason, the court found in Hudson that the dismissal order was not
final and appealable because the defendant did not suffer any substantial harm. Hudson at
¶ 8, citing State v. Williams,
2011-Ohio-6412, ¶ 8 (9th Dist.). See also State v. Dickerson,
1986 WL 8797, *5 (4th Dist. Aug. 13, 1986); City of Cleveland v. Mercer,
2019-Ohio-2231,
¶ 11 (8th Dist.) (dismissal without prejudice deprives appellate court of jurisdiction); State v.
Barna,
2021-Ohio-3794, ¶ 3 (11th Dist.).
{¶ 17} Here, Robinson was not trying to appeal from the dismissal (which was final
years ago); instead, he was asking the trial court to modify or reconsider its 2018 order.
Nonetheless, the court correctly found it lacked the ability to do so.
{¶ 18} The law is well-established that “a court has no authority to reconsider its own
valid final judgments in criminal cases.” State ex rel. Hansen v. Reed, 63 Ohio St.3d 597,
599 (1992), citing Brook Park v. Necak,
30 Ohio App.3d 118 (8th Dist. 1986). Accord State
v. Fankle,
2015-Ohio-1581, ¶ 8 (2d Dist.). “Once a final judgment has been issued pursuant
to Crim.R. 32, the trial court's jurisdiction ends.” State v. Gilbert,
2014-Ohio-4562, ¶ 9. Thus,
“a trial court loses jurisdiction to modify its judgment once that judgment has been affirmed
on appeal.” State ex rel. Davis v. Janas,
2020-Ohio-1462, ¶ 11, citing State ex rel. Special
Prosecutors v. Judges, Court of Common Pleas,
55 Ohio St.2d 94 (1978). As indicated
above, the 2018 judgment, which included the dismissal of charges without prejudice, was
a final order of the court. And, after we affirmed that judgment, the trial court lost its ability
to modify or change it.
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{¶ 19} We understand Robinson contends the trial court's judgment of dismissal was
interlocutory and could be changed. However, that is simply incorrect. “[I]nterlocutory orders
are merged into the final judgment. Thus, an appeal from the final judgment includes all
interlocutory orders merged with it.” MacConnell v. Safeco Property, 2006-Ohio-2910, ¶ 49
(2d Dist.), citing Shaffer v. OhioHealth Corp.,
2004-Ohio-6523, ¶ 11-12. Robinson appealed
from the judgment that included the dismissals.
{¶ 20} As a further matter, Robinson’s most recent motion was barred by res judicata.
“The doctrine of res judicata encompasses the two related concepts of claim preclusion, also
known as res judicata or estoppel by judgment, and issue preclusion, also known as
collateral estoppel.” O'Nesti v. DeBartolo Realty Corp., 2007-Ohio-1102, ¶ 6, citing Grava v.
Parkman Twp.,
73 Ohio St.3d 379, 381 (1995). “Claim preclusion prevents subsequent
actions, by the same parties or their privies, based upon any claim arising out of a transaction
that was the subject matter of a previous action.”
Id., citing Fort Frye Teachers Assn.,
OEA/NEA v. State Emp. Relations Bd.,
81 Ohio St.3d 392, 395 (1998). “Issue preclusion,
on the other hand, serves to prevent relitigation of any fact or point that was determined by
a court of competent jurisdiction in a previous action between the same parties or their
privies.” Id. at ¶ 7. Res judicata also includes issues that could have been raised. State v.
Jackson,
2014-Ohio-3707, ¶ 92.
{¶ 21} As we noted, in August 2018, the trial court filed a termination entry and an
amended termination entry dismissing the remaining charges against Robinson. Robinson
filed an appeal from those entries, and that was the time to challenge the dismissal.
However, Robinson failed to do so, and any further attempts to raise this issue were barred
by res judicata.
{¶ 22} Res judicata also applies based on Robinson’s post-appeal filings. After we
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affirmed the trial court judgment in 2019, the trial court judgment was final, and any
challenges could only be made in accordance with authorized procedures. “Relief from final
judgments in criminal cases is confined to the procedures authorized by statute or rule.”
Janas, 2020-Ohio-1462, at ¶ 11, citing State v. Davis,
2011-Ohio-5028, ¶ 37. Robinson fully
availed himself of these procedures at both trial and appellate levels. In this vein, Robinson
first filed an application for reopening his appeal, which was authorized by App.R. 26(B).
That motion was rejected, as was a second, successive application for reopening.
{¶ 23} The other avenue for relief would have been a postconviction petition filed
under R.C. 2953.21 through R.C. 2953.23. “Under these statutes, any defendant who has
been convicted of a criminal offense and who claims to have experienced a denial or
infringement of his or her constitutional rights (federal or Ohio) may petition the trial court to
vacate or set aside the judgment and sentence. R.C. 2953.21(A). A postconviction
proceeding is not an appeal of a criminal conviction; it is a collateral civil attack on the
judgment.” State v. DeVaughns, 2017-Ohio-475, ¶ 24 (2d Dist.), citing State v. Gondor,
2006-Ohio-6679, ¶ 48.
{¶ 24} As applicable here, when defendants have filed direct appeals of judgments of
conviction, they must file petitions for postconviction relief “no later than three hundred sixty-
five days after the date on which the trial transcript is filed in the court of appeals in the direct
appeal of the judgment of conviction or adjudication. . . .” R.C. 2953.21(A)(2)(a). Because
the trial transcripts in Robinson’s direct appeal (Montgomery C.A. No. 28103) were filed on
August 29, 2018, any postconviction petition must have been filed no more than 365 days
later. Robinson’s current motion, filed in October 2024, was clearly untimely.
{¶ 25} “Trial courts lack jurisdiction to consider an untimely or successive petition for
post-conviction relief, unless the untimeliness is excused under R.C. 2953.23(A).”
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DeVaughns at ¶ 25, citing State v. Current,
2013-Ohio-1921, ¶ 16 (2d Dist.). Under that
statute, “a defendant may not file an untimely or successive petition for post-conviction relief
unless (1) he was unavoidably prevented from discovering the facts upon which he relies to
present his claim, or (2) the United States Supreme Court recognizes a new federal or state
right that applies retroactively to his situation and the petition asserts a claim based on that
right. The petitioner must also show by clear and convincing evidence that, if not for the
constitutional error from which he suffered, no reasonable factfinder could have found him
guilty.”
Id., citing R.C. 2953.23(A)(1)(a) and (b). None of these requirements were satisfied
or even alleged here. Therefore, the trial court lacked jurisdiction to consider the motion.
{¶ 26} However, even if Robinson’s motion were not considered a postconviction
petition, he had previously filed a motion based on the same grounds in July 2024. When
the trial court overruled that motion, Robinson did not appeal. Therefore, res judicata applies
on that basis as well.
{¶ 27} We understand Robinson’s claim is that he is unfairly being prevented from
contesting the State’s dismissal under Crim.R. 48. We also note that even if Robinson had
included such a challenge in his 2018 appeal, it likely would not have succeeded, because
defendants may not appeal such dismissals. Morgan, 2012-Ohio-4750, at ¶ 9 (2d Dist.).
While Robinson believes this is unfair, good reasons exist for precluding appeal. As we said,
once charges are dismissed, defendants are placed in the same position they occupied
before criminal charges were filed. Thus, there is nothing for an appellate court to consider.
As we have often stressed, “appellate courts will not provide advisory opinions.” (Citations
omitted.) State v. Miller,
2018-Ohio-3197, ¶ 18 (2d Dist.). If charges are refiled, Robinson
may assert any defenses he has at that time, such as the claimed violation of his speedy
trial rights.
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{¶ 28} Based on the preceding discussion, Robinson’s sole assignment of error is
overruled.
III. Conclusion
{¶ 29} Robinson’s assignment of error having been overruled, the judgment of the
trial court is affirmed.
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EPLEY, P.J. and HUFFMAN, J., concur.
