[Cite as State v. Carter, 2011-Ohio-4509.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                        {¶ 1} Nos. 96338, 96339, 96340, 96342, 96343,
                                   {¶ 2} 96344, 96345, 96346



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                LAWRENCE CARTER
                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED

                             Criminal Appeal from the
                     Cuyahoga County Court of Common Pleas
              Case Nos. CR-441174, CR-441175, CR-441176, CR-441177,
                   CR-441178, CR-441179, CR-441180, CR-441193

                 BEFORE:             Blackmon, P.J., Celebrezze, J., and Jones, J.
                               2
       RELEASED AND JOURNALIZED:     September 8, 2011
APPELLANT PRO SE

Lawrence Carter
Inmate No. 453-994
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Matthew E. Meyer
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:
                                         3
      {¶ 3} Appellant Lawrence Carter (“Carter”) appeals pro se the trial

court’s denial of his   motion to withdraw his guilty plea and assigns the

following three errors for our review:

      “I. The trial court erred in not granting the appellant’s
      motion to withdraw his plea of guilty that was not
      knowingly, intelligently, and voluntarily made, violating
      his right to due process as guaranteed by both the United
      States & Ohio Constitutions.”


      “II. The trial court erred in not dismissing the appellant’s
      indictment(s) that are constitutionally insufficient to
      charge any criminal offense whatsoever under Ohio Law,
      violating appellant’s rights under the Sixth and
      Fourteenth     Amendments       to   the   United    States
      Constitution, and Article I, Section 10 of the Ohio
      Constitution.”


      “III.   The trial court erred imposing consecutive
      sentences on the appellant when no such statutory
      authority exists for the imposition of such, violating the
      appellant’s constitutional rights pursuant to the Fifth,
      Sixth, & Fourteenth Amendments to the United States
      Constitution, & Article I, Section 10 of the Ohio
      Constitution.”


      {¶ 4} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

                                     Facts

      {¶ 5} On October 23, 2003, Carter pled guilty to aggravated robbery with

firearm specifications in eight different cases. The trial court sentenced him

to a total of 15 years of which 12 years were for the firearm specifications.
                                      4
       {¶ 6} On August 24, 2010, Carter filed motions to impose a lawful

sentence in all eight cases, arguing the trial court failed to properly impose

postrelease controls.   He also filed a motion to withdraw his guilty plea,

alleging his plea was not knowingly entered due to various deficiencies. The

trial court denied Carter’s motion to withdraw his guilty plea, but granted his

motion to impose a lawful sentence and reimposed postrelease control.

                                 Res Judicata

       {¶ 7} We address Carter’s assigned errors together as they are all barred

by res judicata. In his assigned errors, Carter argues the trial court erred by

not granting his motion to withdraw his guilty plea and alleges various ways

his plea was deficient; claims his indictment was invalid; and that the trial

court erred by imposing consecutive sentences.

       {¶ 8} In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332,

       {¶ 9} the Ohio Supreme Court held that when a judge fails to impose

statutorily mandated postrelease control as part of a defendant’s sentence, it is

only that part of the sentence that is void and subject to review and correction.

Id. at ¶26–27. The Fischer court also held that res judicata “applies to other

aspects of the merits of a conviction, including the determination of guilt and

the lawful elements of the ensuing sentence.” Id. at paragraph three of the
                                      5
syllabus. Applying Fischer, we conclude that Carter’s arguments are barred by

res judicata.

      {¶ 10} Carter did not bring a direct appeal from his original 2003

sentence. Nor did he seek a delayed appeal of his convictions. Under the

doctrine of res judicata, a final judgment of conviction bars the convicted

defendant 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 that resulted in that

judgment of conviction or on an appeal from that judgment. State v. Perry

(1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. In

the instant case, all the alleged errors existed at the time of his 2003 plea and

sentence. Therefore, the proper manner to argue these issues would have been

a direct appeal from the 2003 sentence. See State v. Padgett, Cuyahoga App.

No. 95065, 2011-Ohio-1927; State v. Rolling, Cuyahoga App. No. 95473,

2011-Ohio-121, at ¶21; State v. Fountain, Cuyahoga App. Nos. 92772 and

92874, 2010-Ohio-120; State v. Howard, 11th Dist. No. 2010-L-048,

2011-Ohio-2840.

      {¶ 11} Carter acknowledges that the Supreme Court’s holding in Fischer

would bar his arguments, but contends that because he originally entered his

plea and was sentenced before Fischer was decided, we should not

retroactively apply Fischer’s holding.      Prior to Fischer, courts deemed a
                                      6
conviction entirely void, which allowed defendants to raise errors that would

normally be barred by res judicata. “The general rule is that a decision of a

court of supreme jurisdiction overruling a former decision is retrospective in

its operation, and the effect is not that the former was bad law, but that it

never was the law.” Peerless Elec. Co. v. Bowers (1955), 164 Ohio St. 209, 129

N.E.2d 467. Moreover, the Fischer Court did not declare that its decision was

only prospective in operation. Thus, retroactive application of Fischer is

appropriate.

      {¶ 12} Even if res judicata did not apply, the claimed errors are without

merit. Carter failed to provide this court with a transcript of his guilty plea.

Without a transcript of the 2003 plea hearing, the record is inadequate to

permit a review of Carter’s claimed errors, and we must presume the

regularity of the court proceedings. Knapp v. Edwards Laboratories (1980),

61 Ohio St.2d 197, 199, 400 N.E.2d 384.

      {¶ 13} Regarding his arguments that his indictment was defective and

consecutive sentence improper, Carter failed to raise these issues in the court

below. Nonetheless, a plea waives any defect in the indictment. State v.

Martin,

      {¶ 14} Cuyahoga App. No. 95281,       2011-Ohio-222; State v. Haney, 180

Ohio App.3d 554, 2009-Ohio-149, 906 N.E.2d 472, ¶18; State v. Griffin,

Cuyahoga App. No. 92728, 2010-Ohio-437; State v. Hawkins, Cuyahoga App.
                                      7
No. 91930, 2009-Ohio-4368; State v. Gaston, Cuyahoga App. No. 92242,

2009-Ohio-3080. Pursuant to R.C. 2929.14(E)(1)(a), the trial court was

obligated to order that the firearm specifications be served consecutively.

Accordingly, Carter’s three assigned errors are overruled.

      {¶ 15} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said 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.


_________________________________________________
PATRICIA ANN BLACKMON, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, J., CONCUR
