[Cite as State v. Rarden, 2016-Ohio-3108.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




STATE OF OHIO,                                     :
                                                         CASE NO. CA2015-12-214
        Plaintiff-Appellee,                        :
                                                               OPINION
                                                   :            5/23/2016
   - vs -
                                                   :

LONNIE RARDEN,                                     :

        Defendant-Appellant.                       :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2006-07-1271



Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Timothy R. Evans, 110 North Third Street, Hamilton, Ohio 45011, for defendant-appellant



        M. POWELL, P.J.

        {¶ 1} Defendant-appellant, Lonnie Rarden, appeals a decision of the Butler County

Court of Common Pleas denying his Motion to Void Sentence and Void Entries of

Convictions.

        {¶ 2} In 2006, the Butler County Grand Jury returned two indictments collectively

charging appellant with several felonies and misdemeanors, including one count of felony

escape, two counts of felony complicity to perjury, and one count of felony complicity to
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tampering with evidence, all felonies of the third degree. Following a jury trial, appellant was

found guilty of all charges and sentenced to 26 and one-half years in prison. We affirmed

appellant's conviction and sentence on direct appeal and the Ohio Supreme Court declined

review. State v. Rarden, 12th Dist. Butler No. CA2007-03-077 (Apr. 21, 2008) (Accelerated

Calendar Judgment Entry); State v. Rarden, 125 Ohio St.3d 1416, 2010-Ohio-1893.

       {¶ 3} In 2008, shortly before this court issued its decision on appeal, appellant moved

the trial court to vacate his sentence, arguing the trial court had improperly excluded

evidence from trial. Construing the motion as a petition for postconviction relief, the trial

court denied appellant's petition as untimely. Appellant did not appeal from the trial court's

decision.

       {¶ 4} In 2010, appellant moved the trial court to vacate his sentence, arguing he had

not been properly informed of his postrelease control obligations. Finding merit to appellant's

claim, the trial court held a resentencing hearing limited to the proper advisement and

imposition of postrelease control. We affirmed the trial court's decision and the Ohio

Supreme Court declined review. State v. Rarden, 12th Dist. Butler Nos. CA2010-04-095,

CA2010-05-106, and CA2010-05-126 (Feb. 7, 2011) (Accelerated Calendar Judgment Entry);

State v. Rarden, 130 Ohio St.3d 1497, 2011-Ohio-6556.

       {¶ 5} In 2013, appellant once again moved the trial court to vacate his sentence. As

it had done previously, the trial court construed appellant's motion as a petition for

postconviction relief and denied the petition as untimely. The trial court also found that

appellant's petition was barred by the doctrine of res judicata. We affirmed the trial court's

decision and the Ohio Supreme Court declined review. State v. Rarden, 12th Dist. Butler No.

CA2013-07-125, 2014-Ohio-564; State v. Rarden, 139 Ohio St.3d 1407, 2014-Ohio-2245.

       {¶ 6} On September 16, 2015, appellant filed a motion requesting the trial court to

void his five-year prison sentence for his escape conviction and to void his convictions for
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complicity to perjury and tampering with evidence. Appellant argued that his sentence for

escape was void because the jury verdict form upon which his conviction was based neither

provided that the conviction was a third-degree felony nor found him guilty of the additional

elements required to support a third-degree felony escape conviction. Appellant also argued

that his convictions for complicity to perjury and tampering with evidence were void because

during deliberations the trial court's answers to the jurors' questions regarding the offenses

deprived appellant of his right to a jury trial. On November 18, 2015, the trial court denied

appellant's motion, finding that appellant's claims were barred by the doctrine of res judicata.

       {¶ 7} Appellant appeals, raising two assignments of error.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE COURT ERRED IN FAILING TO VOID DEFENDANT'S CONVICTION OF

THE THIRD DEGREE FELONY FOR THE CRIME OF ESCAPE.

       {¶ 10} Appellant argues that because the jury verdict form relating to his escape

conviction failed to state he was guilty of a third-degree felony or to set forth the requisite

elements of a third-degree felony escape, he was only convicted of a first-degree

misdemeanor escape. As a result, appellant asserts, his five-year prison sentence for

escape is void. Appellant cites R.C. 2945.75(A)(2); State v. Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256; and State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, in support of

his argument.

       {¶ 11} R.C. 2945.75(A)(2) provides that "[a] guilty verdict shall state either the degree

of the offense of which the offender is found guilty, or that such additional element or

elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least

degree of the offense charged."

       {¶ 12} In Pelfrey, the Ohio Supreme Court held that "pursuant to the clear language of

R.C. 2945.75, a verdict form signed by a jury must include either the degree of the offense of
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which the defendant is convicted or a statement that an aggravating element has been found

to justify convicting a defendant of a greater degree of criminal offense." Pelfrey, 2007-Ohio-

256 at ¶ 14. In McDonald, the supreme court held that "in cases involving offenses for which

the addition of an element or elements can elevate the offense to a more serious degree, the

verdict form itself is the only relevant thing to consider in determining whether the dictates of

R.C. 2945.75 have been followed." McDonald, 2013-Ohio-5042 at ¶ 17. "[A] felony verdict

form—if it does not state the degree of the offense—must state the elements that distinguish

it from a misdemeanor offense." Id. at ¶ 24.

       {¶ 13} We find that the trial court properly denied appellant's motion to void his escape

sentence under the doctrine of res judicata. Pursuant to that doctrine, a convicted defendant

who was represented by counsel is barred from raising and litigating issues that were raised

or could have been raised at trial or on direct appeal from the judgment of conviction. State

v. Van Tielen, 12th Dist. Brown No. CA2015-09-025, 2016-Ohio-1288, ¶ 19.

       {¶ 14} In the case at bar, while appellant filed a direct appeal from his conviction post

Pelfrey, he did not raise any arguments under Pelfrey or R.C. 2945.75(A)(2) regarding the

jury verdict form. "Pelfrey does not hold that res judicata is inapplicable in situations where

the appellant has not only waived the issue at the trial court level but also failed to raise the

issue in his direct appeal." State v. Alexander, 11th Dist. Trumbull No. 2013-T-0100, 2014-

Ohio-2710, ¶ 17. "Appellate courts that have addressed this issue have found that, where

the appellant filed and argued a direct appeal but did not raise any arguments under Pelfrey

or related to the inadequacy of the jury verdict form, res judicata applies to subsequent

appeals." Id. Because appellant did not raise the issue in his direct appeal, res judicata bars

him from raising it now. See State v. Walburg, 10th Dist. Franklin No. 12AP-637, 2013-Ohio-

1150 (finding that res judicata barred defendant's claim his sentence was void because the

verdict form did not comply with R.C. 2945.75); State v. Hines, 3d Dist. Allen No. 1-10-92,
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2011-Ohio-3125 (same).

        {¶ 15} We recognize that an exception to the application of res judicata applies to a

void judgment. Walburg at ¶ 7; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, ¶

30. However, the failure of a jury verdict form to comply with R.C. 2945.75(A)(2) does not

render a resulting conviction or sentence void. State v. Love, 11th Dist. Lake No. 2011-L-

259, 2012-Ohio-3029, ¶ 19-21; State v. Quinn, 6th Dist. Lucas No. L-14-1037, 2014-Ohio-

5211, ¶ 19; Walburg at id.; and Hines at ¶ 16.

        {¶ 16} Appellant's first assignment of error is accordingly overruled.

        {¶ 17} Assignment of Error No. 2:

        {¶ 18} THE COURT ERRED IN FAILING TO FIND THAT DEFENDANT'S

CONVICTIONS FOR PERJURY AND TAMPERING WITH EVIDENCE WERE VOID AND IN

FAILING TO ORDER A NEW TRIAL FOR DEFENDANT ON THESE COUNTS.

        {¶ 19} Appellant argues that the trial court erred in denying his motion to void his

convictions for complicity to perjury and tampering with evidence. Appellant asserts that in

answering the jury's questions regarding these offenses, the trial court improperly directed

the jury to make certain findings of fact and "in essence deprived [appellant] of the right to a

jury trial."

        {¶ 20} A trial court is not prohibited from clarifying its instructions or answering a jury's

questions during deliberations. State v. Hibbard, 12th Dist. Butler No. CA2002-05-129, 2003-

Ohio-5104, ¶ 11. Rather, "where, during the course of its deliberations, a jury requests

further instruction, or clarification of instructions previously given, a trial court has discretion

to determine its response to that request." State v. Carter, 72 Ohio St.3d 545, 553 (1995).

        {¶ 21} The record shows that during deliberations, the jury asked the trial court to

clarify which official proceedings were involved regarding the two counts of complicity to

perjury, and in what legal proceeding the evidence was to be used in the complicity to
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tampering with evidence count. Contrary to appellant's argument, in answering the jury's

questions, the trial court spoke in terms of the "allegations" and did not indicate the facts

were uncontroverted. Appellant's claim that the trial court's answers to the jury's questions

denied his right to a jury trial is therefore without merit.

       {¶ 22} In any event, the record shows that at the time of his trial, appellant was aware

of both the jury's questions and the trial court's answers. Appellant did not object to the trial

court's answers to the jury's questions, nor did he raise the issue in his direct appeal.

Consequently, res judicata bars appellant from raising the issue now and the trial court

properly denied his motion to void his convictions for complicity to perjury and tampering with

evidence under the doctrine of res judicata. See State v. Blanda, 12th Dist. Butler No.

CA2013-06-109, 2014-Ohio-2234.

       {¶ 23} Appellant's second assignment of error is overruled.

       {¶ 24} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




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