[Cite as State v. Ruffin, 2013-Ohio-1447.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98764




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     WILLIAM RUFFIN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-496450

        BEFORE: Keough, J., Celebrezze, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     April 11, 2013
APPELLANT

William Ruffin
Inmate No. 552-035
Grafton Correctional Institution
2500 South Avon-Belden Road
Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Kristen L. Sobieski
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} In 2007, defendant-appellant, William Ruffin, was indicted in a three-count

indictment. Count 1 charged him with drug possession in violation of R.C. 2925.11, a

first-degree felony, with a major drug offender specification. Count 2 charged Ruffin

with drug trafficking in violation of R.C. 2925.03, a first-degree felony, with a major drug

offender specification, and Count 3 charged him with possession of criminal tools in

violation of R.C. 2923.24, a fifth-degree felony.

       {¶2} Ruffin pled not guilty to the charges and filed a motion to supress the

evidence against him and to obtain the identity of the informant who contacted the police

with information that led to his arrest. The trial court denied both motions. Ruffin then

pled no contest to the indictment. He was convicted of all charges, and the trial court

sentenced him to ten years incarceration on each of Counts 1 and 2 and one year on Count

3. The court ordered all terms to run concurrently, for an aggregate term of ten years.

       {¶3} Ruffin appealed his convictions to this court, challenging only the trial

court’s denial of his motion to suppress. This court held that the the trial court properly

denied the motion to suppress and affirmed Ruffin’s convictions. State v. Ruffin, 8th

Dist. No. 91289, 2009-Ohio-861.

       {¶4} Ruffin subsequently filed a motion to withdraw his plea, which the trial

court denied. This court dismissed Ruffin’s appeal of that ruling.
       {¶5} On July 18, 2012, Ruffin filed a motion for resentencing, which the trial

court denied. Ruffin now appeals from that ruling.

       {¶6} Ruffin argues on appeal that the trial court erred in denying his motion for

resentencing.   He contends that he is a first-time offender and should have been

sentenced to the minimum sentence of three years instead of the maximum ten-year

sentence he received, and that the trial court violated his Sixth Amendment right to a jury

when sentencing him by engaging in improper fact-finding to determine his ten-year

sentence, contrary to the holding in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,

845 N.E.2d 470. Ruffin’s argument is without merit.

       {¶7} 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 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 trial,
       which resulted in that judgment of conviction, or on an appeal from that
       judgment.

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), syllabus.

       {¶8} It is well settled that the doctrine of res judicata bars claims that were raised

or could have been raised on direct appeal.         State v. Davis, 119 Ohio St.3d 422,

2008-Ohio-4608, 894 N.E.2d 1221. Because Ruffin could have, but did not, raise any

issue regarding sentencing in his direct appeal, the issue is now barred by res judicata.

       {¶9} Moreover, Ruffin’s motion must be construed as a petition for

postconviction relief and, as such, is untimely. “Where a criminal defendant, subsequent

to his or her direct appeal, files a motion seeking vacation or correction of his or her
sentence on the basis that his or her constitutional rights have been violated, such a

motion is a petition for postconviction relief as defined in R.C. 2953.21.” State v.

Reynolds, 79 Ohio St.3d 158, 1997-Ohio-304, 679 N.E.2d 1131, syllabus. In his motion,

Ruffin argued that the trial court had violated his Sixth Amendment right to a jury trial by

determining facts not proven to a jury nor admitted by him in order to sentence him to the

maximum ten-year sentence.

       {¶10} R.C. 2953.21(A)(20) provides that petitions for postconviction relief “shall

be filed no later than one hundred eighty 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.” Ruffin’s

petition was filed some five years after he was convicted and was obviously untimely.

       {¶11} Furthermore, there was no error in sentencing. By pleading no contest,

Ruffin admitted to the facts of the indictment, which charged in Count 1 that he possessed

crack cocaine in an amount equal to or exceeding 100 grams.                     Under R.C.

2925.11(C)(4)(f), if the amount of drugs involved equals or exceeds 100 grams of

cocaine, possession of cocaine is a felony of the first degree, the offender is automatically

classified as a major drug offender, and the court shall impose as a mandatory prison term

the maximum prison term prescribed for a first-degree felony under R.C. 2929.14(A)(1).

Accordingly, the trial court did not err in sentencing Ruffin to ten years incarceration on

Count 1.

       {¶12} The trial court properly denied Ruffin’s motion for resentencing and the

assignment of error is therefore overruled.
       {¶13} 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
