[Cite as State v. Gomez, 2014-Ohio-5257.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                       C.A. Nos.     27341
                                                                  27354
        Appellant

        v.
                                                    APPEAL FROM JUDGMENT
CARLOS FRANCISCO GOMEZ                              ENTERED IN THE
                                                    COURT OF COMMON PLEAS
        Appellee                                    COUNTY OF SUMMIT, OHIO
                                                    CASE No.   CR 09 07 2145

                                 DECISION AND JOURNAL ENTRY

Dated: November 26, 2014



        HENSAL, Presiding Judge.

        {¶1}    Appellant/Cross-Appellee, Carlos Gomez, appeals from his conviction in the

Summit County Court of Common Pleas. Appellee/Cross-Appellant, the State of Ohio, appeals

from the judgment imposing sentence. For the reasons set forth below, we affirm Mr. Gomez’

conviction, but vacate the judgment of sentence.

                                               I.

        {¶2}    Following an incident that occurred in July 2009, Mr. Gomez was convicted of

one count of domestic violence, a fifth-degree felony in violation of R.C. 2919.25(A). At the

time of Mr. Gomez’ offense, R.C. 2919.25 required courts to sentence fifth-degree felony

offenders to “a mandatory prison term * * * pursuant to division (A)(6) of this section.” Former

R.C. 2919.25(D)(5). The statute, however, did not contain a division (A)(6). Instead, division

(D)(6) mandated a prison term of at least six months for fifth-degree felonies. See Former R.C.
                                                   2


2919.25(D)(6).1       Upon motion by Mr. Gomez, the trial court found the statute to be

unconstitutionally vague. Consequently, it refused to impose a mandatory prison term upon him.

The court sentenced Mr. Gomez to two years of community control, and both Mr. Gomez and

the State appealed.

          {¶3}   On appeal, Mr. Gomez presented sufficiency and weight of the evidence

challenges and the State challenged the trial court’s refusal to impose a mandatory prison term of

at least six months. See State v. Gomez, 9th Dist. Summit Nos. 25496 & 25501, 2011-Ohio-

5475. This Court affirmed Mr. Gomez’ conviction, but agreed that the trial court had committed

reversible error in sentencing him. We concluded that “the trial court erred by failing to impose

a mandatory prison term on [Mr.] Gomez to effect the clear legislative intent of [R.C. 2919.25].”

Id. at ¶ 31. Consequently, we reversed the judgment of sentence and remanded the matter for

“[the] imposition of a sentence consistent with this decision.” Id. at ¶ 32.

          {¶4}   On remand, the court sentenced Mr. Gomez to serve six months in the Summit

County Jail and stayed his sentence for purposes of an appeal. Both Mr. Gomez and the State

appealed, and this Court consolidated the two appeals. We address each appeal in turn.

                                                  II.

                            Mr. Gomez’ Appeal – Appeal Number 27341

          {¶5}   On August 25, 2014, Mr. Gomez’ counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), asserting that there were no appealable issues, and moved to

withdraw as counsel. The record indicates that Mr. Gomez was served with a copy of appellate

counsel’s brief, and this Court issued a magistrate’s order affording Mr. Gomez an opportunity to

raise arguments after review of the Anders brief. Mr. Gomez has not responded to the brief.


1
    The statute has since been corrected to make reference to division (D), rather than division (A).
                                               3


       {¶6}   Initially, we note that appellate review in this case is extremely limited. Mr.

Gomez already had his direct appeal, and this Court’s remand was strictly limited to resentencing

Mr. Gomez in conformance with the domestic violence statute. Therefore, the doctrine of res

judicata would prohibit any challenges to Mr. Gomez’ underlying convictions in this appeal.

See, e.g., State v. Brown, 9th Dist. Summit No. 26427, 2012-Ohio-5484, ¶ 11 (“The doctrine of

res judicata procedurally bars convicted defendants from relitigating matters which were, or

could have been, properly litigated on direct appeal.”). Upon this Court’s own full, independent

examination of the record before us, we find that there are not appealable, non-frivolous issues

that appellate counsel could have raised on behalf of Mr. Gomez. See State v. Randles, 9th Dist.

Summit No. 23857, 2008-Ohio-662, ¶ 6; State v. Lowe, 9th Dist. Lorain No. 97CA006758, 1998

WL 161274, *2 (Apr. 8, 1998).        Accordingly, with respect to appeal number 27341, the

judgment is affirmed.

                            State’s Appeal – Appeal Number 27354

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN NOT IMPOSING A MANDATORY PRISON
       TERM OF AT LEAST SIX MONTHS[.]

       {¶7}   In its sole assignment of error, the State argues that the trial court erred by

sentencing Mr. Gomez to six months in jail. We agree.

       {¶8}   The law of the case doctrine “provides that the decision of a reviewing court in a

case remains the law of that case on the legal questions involved for all subsequent proceedings

in the case at both trial and reviewing levels.” Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). “The

function of the doctrine is ‘to compel trial courts to follow the mandates of reviewing courts.’”

Matheny v. Norton, 9th Dist. Summit No. 26666, 2013-Ohio-3798, ¶ 14, quoting Nolan at 3.

“Absent extraordinary circumstances, such as an intervening decision by the Supreme Court, an
                                                 4


inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in

the same case.” Nolan at syllabus.

       {¶9}    In the prior appeal in this matter, this Court rejected the trial court’s conclusion

that R.C. 2919.25 was unconstitutionally vague and found that the statute contained a

typographical error. Gomez, 2011-Ohio-5475, at ¶ 29-31. We determined that “[i]t was the clear

intent of the General Assembly to impose a mandatory prison term if the offender knew that the

victim was pregnant.” Id. at ¶ 31, quoting State v. Cross, 9th Dist. Summit No. 25487, 2011-

Ohio-3250, ¶ 44. See also Former R.C. 2919.25(D)(6)(a) (requiring imposition of a prison term

of at least six months for fifth-degree felonies). Consequently, we found that “the trial court

erred by failing to impose a mandatory prison term on [Mr.] Gomez to effect the clear legislative

intent of [R.C. 2919.25].” Gomez at ¶ 31. We reversed the judgment of sentence and remanded

the cause “for imposition of a sentence consistent with [our] decision.” Id. at ¶ 32.

       {¶10} On remand, the trial court sentenced Mr. Gomez to six months in jail. By virtue

of R.C. 2919.25 and this Court’s mandate, however, the court was required to sentence Mr.

Gomez to at least six months in prison. See id. at ¶ 31-32. The trial court had no authority to

disregard our mandate. See Nolan at 4 (“[T]he trial court is without authority to extend or vary

the mandate given.”). As such, the State’s sole assignment of error is sustained and the judgment

of sentence is vacated. See Warren v. Denes Concrete, Inc., 9th Dist. Lorain No. 10CA009877,

2011-Ohio-2988, ¶ 8. Upon remand, the court must “impose a mandatory prison term on [Mr.]

Gomez to effect the clear legislative intent of [R.C. 2919.25].” Gomez at ¶ 31.

                                                III.

       {¶11} With respect to appeal number 27341, this Court concludes that Mr. Gomez’

appeal is meritless and wholly frivolous under Anders v. California. Therefore, the judgment of
                                                 5


conviction is affirmed, and the motion to withdraw filed by Mr. Gomez’ counsel is granted.

With respect to appeal number 27354, the State’s sole assignment of error is sustained. The

judgment of sentence of the Summit County Court of Common Pleas is vacated, and the cause is

remanded for imposition of a sentence consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                  vacated in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, J.
MOORE, J.
CONCUR.
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APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.

JEFFREY N. JAMES, Attorney at Law, for Appellee.
