[Cite as State v. McGowan, 2017-Ohio-7124.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                  ASHTABULA COUNTY, OHIO


STATE OF OHIO,                                    :        OPINION

                 Plaintiff-Appellee,              :
                                                           CASE NO. 2016-A-0052
        - vs -                                    :

ANDRE MCGOWAN,                                    :

                 Defendant-Appellant.             :


Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00378.

Judgment: Affirmed.


Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).

Brian A. Smith, 755 White Pond Drive, Suite 403, Akron, OH 44320 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Andre McGowan, appeals from the August 9, 2016 judgment of

the Ashtabula County Court of Common Pleas, resentencing him as a result of an error

in its original imposition of post-release control.        Appellant’s appointed, appellate

counsel has filed a brief and requested leave to withdraw, pursuant to Anders v.

California, 386 U.S. 738 (1967). Appellant was served with the brief and subsequently

filed a pro se appellate brief.        After conducting an independent review of appellant’s
case, we conclude the instant appeal is wholly frivolous and affirm the trial court’s

judgment.

         {¶2}   Appellant was indicted on two counts of robbery, in violation of R.C.

2911.02, felonies of the third degree; two counts of kidnapping, in violation of R.C.

2905.01, felonies of the second degree; one count of theft, in violation of R.C. 2913.02,

a felony of the fifth degree; and one count of grand theft, in violation of R.C. 2913.02, a

felony of the fourth degree.     Separate jury trials were held, because the charges

stemmed from two separate incidents and appellant was granted relief from prejudicial

joinder. Ultimately, appellant was found guilty on all counts. The trial court sentenced

appellant on one count of robbery and one count of kidnapping to a total of 10 years;

the remaining counts merged.

         {¶3}   Appellant appealed and, in State v. McGowan, 11th Dist. Ashtabula No.

2015-A-0015, 2015-Ohio-4430, this court affirmed appellant’s convictions. Appellant

subsequently filed an application for reopening, raising six proposed assignments of

error.   After finding appellant was deprived of the effective assistance of appellate

counsel on appeal regarding the duration of post-release control, this court granted the

application, reinstated the appeal, and remanded the case for the trial court to correct

the error. On August 9, 2016, the trial court addressed the error and appellant filed the

instant appeal.

         {¶4}   On December 12, 2016, appointed appellate counsel filed a brief,

pursuant to Anders, supra. In Anders, the United States Supreme Court held that if

appellate counsel, after a conscientious examination of the record, finds an appeal to be

wholly frivolous, he or she should advise the court and request permission to withdraw.




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Id. at 744. This request to withdraw must be accompanied by a brief citing anything in

the record that could arguably support an appeal. Id. Further, counsel must furnish his

or her client with a copy of the brief and request to withdraw and give the client an

opportunity to raise any additional issues. Id. Once these requirements have been met,

the appellate court must review the entire record to determine whether the appeal is

wholly frivolous. Id. If the court finds the appeal wholly frivolous, the court may grant

counsel’s motion to withdraw and proceed to a decision on the merits. Id. If, however,

the court concludes the appeal is not frivolous, it must appoint new counsel for the

client. Id.

       {¶5}   Pursuant to Anders, counsel’s brief was properly served on appellant, who

filed a merit brief.   We shall first address appointed counsel’s proposed potential

assignment of error. It provides:

       {¶6}   “Whether appellant’s sentence, particularly the trial court’s findings under

R.C. 2929.14(C)(4), was supported by the record.”

       {¶7}   Appointed counsel’s potential assignment of error challenges the trial

court’s imposition of consecutive sentences on resentencing.        The doctrine of res

judicata bars the further litigation in a criminal case of issues that were or could have

been raised previously in a direct appeal. See e.g., State v. Perry, 10 Ohio St.2d 175

(1967), paragraph nine of the syllabus. Appellant could have raised challenges to his

sentence on direct appeal; he did not do so.

       {¶8}   In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, the Ohio

Supreme Court clarified the foregoing in relation to post-release control issues.       It

observed “when a judge fails to impose statutorily mandated post-release control as




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part of a defendant’s sentence, that part of the sentence is void and must be set aside.”

Id. at ¶26. Nevertheless, “res judicata still 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 ¶40. The remand for resentencing was limited to the issue of correcting

the improper imposition of post-release control. The trial court complied with this order

and imposed the legally correct post-release control sanction. Because the remaining

lawful elements of appellant’s sentence were not at issue on remand, those details and

that aspect of appellant’s conviction are res judicata. We therefore hold there are no

colorable issues relating to the nature and adequacy of the trial court’s findings vis-à-vis

its imposition of consecutive sentences.

        {¶9}     Appointed counsel’s potential assignment of error has no merit.

        {¶10} In his appellate brief, appellant assigns eight potential assignments of

error for our consideration. They provide:

        {¶11} “[1.] The trial court erred to the prejudice of the appellant and abused its

discretion by failing to instruct the jury on the lesser-included offenses to Kidnapping

and Robbery. In violation of the Due Process Clause and the 5th and 6th amendment

[sic] right to a fair trial. [Sic.]

        {¶12} “[2.] [The] [t]rial court erred to the prejudice of defendant and Abused it’s

Discretion [sic] in finding no Sixth Amendment Speedy Trial violation.         Overruled a

motion to Dismiss indictment based on a speedy trial violation.

        {¶13} “[3.] The trial court Abused its Discreiton and Erred to the Prejudice of

Defendant in overruling Motion to Suppress confession. In violation of the Confrontation




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Clause and Due Process of the Fourth, Fifth, Sixth, & Fourteenth Amendments to the

United State[s] Constitution. [Sic.]

       {¶14} “[4.] The trial court lacks Subject Matter Jurisdiction to impose sentence

and conviction for the improper Bind over [sic] Procedure for failure to award a Affidavit-

Complaint, & initiate a Preliminary Hearing. In violation of the Due Process Clause of

the Fourteenth Amendment And Sixth Amendment Right to fair and impartial trial. [Sic.]

       {¶15} “[5.]   The trial court erred to the prejudice of Defendant-Appellant &

Abused its Discretion in assuming Subject-matter jurisdiction when Grand Jury

indictment was never admitted into evidence & not sending indictment with jury during

deliberations in violation of 5th Amendment fair & impartial trial and Due Process

Clause of the 5th Amendment of the United Sates Constitution. [Sic.]

       {¶16} [6.] The trial court Abused Its Discretion when it denied Defendant-

Appelalnt Due Process of Law under the 5th and 14th Amendments of the United States

Constitution in assuming jurisdiction over the Robbery & Kidnapping complaints which

were not properly executed in violation of Crim.R. 3. [Sic.]

       {¶17} [7.][The] [t]rial court abused its discretion & erred to the prejudice of

Defendant-Appellant by failing to merger Kidnapping with Robbery as allied offenses

and sending allied offenses to jury after acquittal of first trial, violated the Doctrine of

Collateral Estoppel & 5th, 6th Amendment Constitutional Right to a fair trial & Due

Process Clause under the 14th Amendment of the United States Constitution. [Sic.]

       {¶18} [8.]    Ineffective Assistance of trial Counsel for filing a Relief From

Prejudicial Joinder in having trials separated under one indictment. In violation of the 6th

Amendment. Trial counsel Virginia Miller Committed Ineffective Assistance of Counsel




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for failing to object to curative instruction.   Trial counsel Virginia Miller committed

ineffective assistance of counsel in failing to support argument on Speedy Trial violation

& Crim.R. 3 violation with U.S. & Ohio Constitution violation. Relying entirely on Ohio

Precedent.     Ineffective assistance of trial counsel Virginia Miller allowed an

inexperienced attorney who was only to assist as co-counsel to become lead counsel at

Defendant’s second trial. In violation of Defendant’s 6th Amendment Presumptive right

to counsel of his choosing. [Sic.]”

       {¶19} Appellant’s first, second, third, sixth, seventh, and eighth potential

assignments of error either have been addressed in his application for reopening, or

could have been addressed on direct appeal. Pursuant to Fischer, supra, they are

therefore barred by res judicata. In his fourth and fifth potential assignments of error,

however, appellant purports to challenge the subject matter jurisdiction of the trial court.

A court’s power to hear a case, i.e., its subject matter jurisdiction, cannot be waived or

forfeited and may be raised at any time. See e.g., State v. Mbodji, 129 Ohio St.3d 325,

2011-Ohio-2880, ¶10.

       {¶20} In appellant’s fourth potential assignment of error, he asserts the trial court

lacked subject-matter jurisdiction due to an improper bindover procedure. Whether a

bindover proceeding was proper is a matter that must be raised on direct appeal or it is

barred by res judicata. State v. Callahan, 7th Dist. Mahoning No. 12 MA 173, 2013-

Ohio-5864, ¶10. And, in any event, appellant was indicted on various felony counts by

the Ashtabula County Grand Jury.        The indictment properly invoked the trial court’s

subject-matter jurisdiction on the indicted crimes.      Gotel v. Gansheimer, 11th Dist.




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Ashtabula No. 2006-A-0087, 2007-Ohio-2311, ¶8. We discern no jurisdictional error

and thus the fourth potential error lacks merit.

       {¶21} Appellant’s fifth potential assignment of error asserts the trial court lacked

subject-matter jurisdiction over the case to the extent the underlying indictment was not

submitted to the jury and the state allegedly changed the charging instrument through a

constructive amendment during the trial. Preliminarily, as just indicated, the properly

filed indictment was sufficient to invoke the trial court’s jurisdiction.      Gotel, supra.

Further, the record does not support the allegation that state constructively amended

the indictment at trial. Appellant was indicted by the grand jury and was ultimately

convicted on crimes that were included in the indictment returned by the grand jury.

Regardless, this alleged issue was apparent at the time of trial and could have been

raised on direct appeal. It is therefore res judicata. This potential error lacks merit.

       {¶22} With these points in mind, the trial court, on remand, properly imposed the

three years post-release control at the sentencing hearing and entered the same order

in its judgment. After an independent review of the record, we perceive no errors and

conclude the instant appeal is wholly frivolous. The judgment of the Ashtabula County

Court of Common Pleas is affirmed and counsel’s motion to withdraw is granted.



TIMOTHY P. CANNON, J.,

DIANE V. GRENDELL, J.,

concur.




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