[Cite as State v. Williams, 2018-Ohio-3458.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee    :       Hon. Earle E. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 2018CA00060
AGATHA MARTIN WILLIAMS                         :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Stark County
                                                   Court of Common Pleas, Case No.2012-
                                                   CR-0164




JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            August 27, 2018


APPEARANCES:



For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    AGATHA MARTIN WILLIAMS
Stark County Prosecutor                            #W-085056
BY: RONALD MARK CALDWELL                           Northeast Reintegration Center
110 Central Plaza South, 5th Floor                 2675 East 30th Street
Canton, OH 44702                                   Cleveland, OH 44115
[Cite as State v. Williams, 2018-Ohio-3458.]


Gwin, P.J.

        {¶1}     Appellant Agatha Martin Williams appeals the April 19, 2018 judgment entry

of the Stark County Court of Common Pleas. Appellee is the State of Ohio.

                                           Facts & Procedural History

        {¶2}     In 2012, appellant waived her right to be charged by indictment and agreed

to plead guilty to multiple charges contained in a bill of information. On February 10,

2012, appellant entered a plea of guilty to four counts of grand theft, one count of theft,

and one count of forgery. The trial court sentenced appellant to five years of community

control, one year of which was to be intensive supervision probation. The trial court

informed appellant at sentencing that a violation of her community control sanction would

result in a maximum consecutive prison sentence imposed on each offense, for a total

prison term of 102 months.

        {¶3}     On September 27, 2012, the Ohio Supreme Court Board of Commissioners

on Grievances and Discipline held proceedings to determine whether appellant should be

permanently disbarred from the practice of law. Counsel for Relator called appellant on

cross examination, inquiring as to when appellant had last left the State of Ohio. Appellant

responded that she had gone to Pittsburgh, Pennsylvania to gamble approximately one

week prior to the hearing. Her conduct in leaving the state to gamble violated the terms

and conditions of her community control.

        {¶4}     Based on the testimony before the Board of Commissioners on Grievances

and Discipline, the State filed a motion to remove her probation. Multiple hearings were

held on the motion to revoke. At a hearing on October 4, 2012, the trial court granted the

motion to revoke probation. The trial court then sentenced appellant to 18 months in
Stark County, Case No. 2018CA00060                                                          3


prison on each of the four counts of grand theft, 18 months in prison for the one count of

forgery, and 12 months in prison for the one count of theft. Appellant was ordered to

serve her sentences consecutively for a total prison term of 102 months.

       {¶5}   Appellant filed an appeal of the sentencing entry. In State v. Williams, 5th

Dist. Stark No. 2013CA00189, 2013-Ohio-3448, we sustained appellant’s first

assignment of error and found the trial court erred when it failed to make the necessary

findings prior to imposing consecutive sentences, but overruled her other assignment of

error. We remanded to the trial court “for the limited purpose of resentencing.” Id. The

Ohio Supreme Court declined to accept appellant’s appeal for review in State v. Williams,

137 Ohio St.3d 1442, 2013-Ohio-5678, 999 N.E.2d 696. The U.S. Supreme Court denied

a petition of writ of certiorari in State v. Williams, -- U.S. --, 134 S.Ct. 2294, 189 L.Ed.2d

180 (2014).

       {¶6}   Appellant filed a petition for habeas corpus in the U.S. District Court for the

Southern District of Ohio. The Southern District transferred the case to the Northern

District. Appellant argued the trial court denied her due process of law. The federal court

dismissed her petition.     Williams v. Kelly, N.D. Ohio No. 5:14-CV-1304, 2015 WL

10527279, report and recommendation adopted in part sub. nom. Williams v. Burkes,

N.D. Ohio No. 5:14-CV-1304, 2016 WL 1089396, and report and recommendation

adopted in part sub. nom. Williams v. Burkes, N.D. Ohio No. 5:14-CV-1304, 2016 WL

2898133, adhered to on reconsideration, N.D. Ohio No. 5:14-CV-13042016, 2016 WL

6649311.

       {¶7}   The case returned to the trial court on April 16, 2014 for a resentencing

hearing. The trial court imposed the maximum sentence on each count to be served
Stark County, Case No. 2018CA00060                                                         4


consecutively, for a prison term of 102 months. Appellant was given credit for jail time

served. The trial court’s decision was journalized on April 21, 2014. Appellant appealed

to this Court, arguing the trial court erred in sentencing appellant to consecutive prison

terms; the trial court lacked the authority to re-sentence appellant on count one; and the

trial court abused its discretion in ordering appellant to pay a fine of $27,000. In State v.

Williams, 5th Dist. Stark No. 2014CA00086, 2015-Ohio-780, we overruled appellant’s

assignments of error. The Ohio Supreme Court declined to accept appellant’s appeal for

review in State v. Williams, 143 Ohio St.3d 1406, 2015-Ohio-2747, 34 N.E.3d 133 and

denied her motion for reconsideration in State v. Williams, 143 Ohio St.3d 1467, 2015-

Ohio-3733, 37 N.E.3d 1251.

       {¶8}   On March 22, 2017, this Court denied appellant’s application for en banc

consideration and reconsideration.       The Ohio Supreme Court declined to accept

appellant’s appeal for review in State v. Williams, 150 Ohio St.3d 1432, 2017-Ohio-7567,

81 N.E.3d 1272 (2017). On June 1, 2017, this Court denied appellant’s motion to certify

conflict. The Ohio Supreme Court declined to accept appellant’s appeal for review in

State v. Williams, 151 Ohio St.3d 1427, 2017-Ohio-8371, 84 N.E.3d 1064.

       {¶9}   On March 6, 2017, appellant filed a writ of procedendo with the Ohio

Supreme Court.      Appellant argued: the trial court violated the one document rule;

ineffective assistance of counsel; the trial court imposed inconsistent sentences; the

record does not support the imposition of consecutive sentences; the trial court should

have merged allied offenses; the trial court should have aggregated charges; the trial

court should have held a hearing on restitution; the trial court unlawfully imposed court

costs; the trial court unlawfully imposed dual penalties of community control and prison;
Stark County, Case No. 2018CA00060                                                       5


the trial court unlawfully imposed a fine; her sentence is void, and the trial court should

not have sentenced her for a violation of community control. The Ohio Supreme Court

dismissed appellant’s writ on June 21, 2017. State ex rel. Williams v. Fifth Dist. Court of

Appeals, 149 Ohio St.3d 1429, 2017-Ohio-4396, 76 N.E.3d 1206.

      {¶10} On March 23, 2018, appellant filed a motion to vacate and void sentence.

Appellant argued the trial court imposed a single lump five-year period of community

control instead of imposing a community control sanction on each of the offenses of which

appellant was convicted. On April 19, 2018, the trial court denied appellant’s motion.

      {¶11} Appellant appeals the April 19, 2018 judgment entry of the Stark County

Court of Common Pleas and assigns the following as error:

      {¶12} “I. WHEN THE TRIAL COURT IMPOSED ONE LUMP FIVE-YEAR TERM

OF COMMUNITY CONTROL FOR CONVICTIONS INCLUDING FORGERY, FOUR

COUNTS OF GRAND THEFT, AND ONE COUNT OF THEFT, THE TRIAL COURT

VIOLATED R.C. 2929.11 THROUGH 2929.19 BY NOT IMPOSING A SEPARATE

SENTENCE FOR EACH OFFENSE

      {¶13} “II. THE TRIAL COURT LACKED JURISDICTION, IN ITS JOURNAL

ENTRY OF OCTOBER 15, 2012 AND APRIL 2014 TO MAKE A FINDING THAT

DEFENDANT VIOLATED COMMUNITY CONTROL. COMMUNITY CONTROL WAS

UNLAWFULLY AND ERRANTLY IMPOSED BY THE COURT ON MARCH 27, 2012

SUCH THAT THE TRIAL COURT COULD NOT FIND THE DEFENDANT IN VIOLATION

OF A VOID SENTENCE.           DEFENDANT’S FIFTH AMENDMENT RIGHT AGAINST

DOUBLE JEOPARDY WILL BE VIOLATED IF THE COURT IS PERMITTED TO RE-

SENTENCE THE DEFENDANT.
Stark County, Case No. 2018CA00060                                                      6


      {¶14} “III. RES JUDICATA DOES NOT ACT AS A BAR AGAINST DEFENDANT

FROM RAISING THE VOID NATURE OF THE ORIGINAL SENTENCING ENTRY OF

MARCH 27, 2012 BECAUSE IT WAS A NON-FINAL ORDER, NOTWITHSTANDING

DEFENDANT TWICE APPEALED HER SENTENCE.

      {¶15} “IV. THE TRIAL COURT ERRED BY ABDICATING ITS DUTY TO

CORRECT THE VOID JUDGMENTS WHEN IT DENIED DEFENDANT’S MOTION TO

VACATE THE VOID JUDGMENTS OF MARCH 27, 2012 AND OCTOBER 15, 2012 AND

APRIL 2014.”

                                          I., II., III., IV.

      {¶16} In her assignments of error, appellant argues it was plain error for the trial

court to utilize a “sentencing package” when it imposed a lump sum of community control,

that the journal entry imposing community control is void, as are the March 2012, October

2012, and April 2014 judgment entries, and that since the community control sanctions

were not properly imposed, she cannot be found in violation of such sanctions.

      {¶17} The denial of appellant’s 2018 motion to vacate and void sentence is the

subject of this appeal.   However, the basis for that motion stems from the original

sentencing entry and sentencing hearing. Appellant argues the trial court erred in failing

to impose a sentence for each of the underlying charges. She thus asserts community

control was never properly imposed and thus her entire sentence is null and void. We

disagree.

      {¶18} Appellant cites to cases from other appellate districts finding they lacked

jurisdiction to hear an appeal where the trial court sentenced the defendant to a single

term of community control for multiple offenses. However, in the cases appellant cites,
Stark County, Case No. 2018CA00060                                                        7


the appellate courts found that if a trial court fails to advise a defendant on the specific

terms of imprisonment that could be imposed, the court cannot sentence a defendant to

a lump sum of community control on all counts. State v. Williams, 3rd Dist. Hamilton No.

5-10-02, 2011-Ohio-995; State v. Olverson, 1st Dist. Hamilton No. C-170018, 2017-Ohio-

9188.

        {¶19} The facts in this case are distinguishable from the cases cited by appellant.

Here, appellant was advised of the potential penalties for each felony conviction and

signed a plea agreement. The trial court indicated that appellant was sentenced to a total

of five years of community control. The duration of the community control imposed upon

appellant did not exceed the statutory maximum permitted by law, as R.C. 2929.15(A)(1)

provides “the duration of the community control sanctions imposed upon an offender

under this division shall not exceed five years.” Appellant was on notice that she would

serve a specific amount of prison time on each count if she did not comply with the

requirements of community control. The trial court specifically informed appellant that if

the trial court found prison was the appropriate remedy for a community control violation,

the trial court would sentence her to an 18-month prison term on each F-4 count and to a

12-month prison term on the F-5 count, run consecutively, for a total of 102 months. See

State v. Kirkpatrick, 11th Dist. Trumbull No. 2015-T-0090, 2016-Ohio-1314.           At the

sentencing hearing, appellant stated she understood the terms and conditions of

community control and also understood that if she was found to violate the terms of

conditions of her community control and the trial court found prison was the appropriate

remedy, she would be sentenced to an 18-month prison term on each of the F-4’s and a

12- month prison term on the F-5, which would run consecutively.
Stark County, Case No. 2018CA00060                                                          8


       {¶20} Additionally, the Ohio Supreme Court has overturned several cases in

which the appellate court determined it lacked jurisdiction to hear an appeal where the

trial court sentenced the defendant to a single term of community control for multiple

offenses and where the defendants had violated community control and already received

a prison term. In State v. Goldsberry, 3rd Dist. Union No. 14-07-06, 2007-Ohio-5493, the

appellant argued the trial court erred when it imposed a prison sentence for a community

control violation because the trial court sentenced him to a lump sum of community

control. The Third District stated the journal entry did not comply with Criminal Rule 32(C).

The Ohio Supreme Court reversed the case, and remanded it to the court of appeals to

rule on the merits of the assignments of error. State v. Goldsberry, 120 Ohio St.3d 275,

2008-Ohio-6103, 898 N.E.2d 46; see also State v. South, 120 Ohio St.3d 350, 2008-Ohio-

6693, 899 N.E.2d 146 (reversing the Third District’s dismissal of an appeal when the trial

court imposed a lump sentence of community control).

       {¶21} In both the South and Goldsberry cases, the defendants had violated

community control and already received a prison term. Those cases are analogous to

the instant case, as in this case, appellant violated community control and already

received a prison term.

       {¶22} Appellant also argues it was plain error for the trial court to utilize a

“sentencing package.” The Ohio Supreme Court has recently clarified the standard of

review for plain error:

              Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

       errors or defects affecting substantial rights” notwithstanding an accused’s

       failure to meet his obligation to bring those errors to the attention of the trial
Stark County, Case No. 2018CA00060                                                      9


      court. However, the accused bears the burden to demonstrate plain error

      on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,

      19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

      rule” that constitutes “an ‘obvious’ defect in the trial proceedings,” State v.

      Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

             Even if the error is obvious, it must have affected substantial rights,

      and “[w]e have interpreted this aspect of the rule to mean that the trial

      court’s error must have affected the outcome of the trial.” Id. We recently

      clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

      860, that the accused is “required to demonstrate a reasonable probability

      that the error resulted in prejudice – the same deferential standard for

      reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. At

      ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124

      S.Ct. 2333, 159 L.Ed.2d 157 (2004).

             If the accused shows that the trial court committed plain error

      affecting the outcome of the proceeding, an appellate court is not required

      to correct it; we have “admonish[ed] courts to notice plain error ‘with the

      utmost caution, under exceptional circumstances and only to prevent a

      manifest miscarriage of justice.’” (Emphasis added.) Barnes at 27, 759

      N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

      (1978), paragraph three of the syllabus.

State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, reconsideration

denied, 151 Ohio St.3d 1445, 2017-Ohio-8730, 87 N.E.3d 215.
Stark County, Case No. 2018CA00060                                                      10


       {¶23} In this case, we find no plain error. Both at the sentencing hearing and in

the sentencing entry, the trial court listed the offenses that appellant pled guilty to and

was convicted of and detailed the conditions of her community control. Further, the trial

court informed appellant that if she violated her community control and the court found

prison was the appropriate remedy, the trial court would sentence her to an 18-month

prison term on each of the five F-4’s and to a 12-month prison term on the F-5, all running

consecutively for a total prison term of 102 months, which the trial court did impose when

it found she violated the terms and conditions of her community control. At the sentencing

hearing, appellant stated she understood the terms and conditions of community control

and also understood that if she was found to violate the terms of conditions of her

community control and the trial court found prison was the appropriate remedy, she would

be sentenced to an 18-month prison term on each of the F-4’s and a 12- month prison

term on the F-5, which would run consecutively. Thus, we are unable to conclude on this

record the result of the proceeding would have been different had the alleged error not

occurred.

       {¶24} Finally, as noted by appellee, even if the trial court should have imposed

five year community control sentences for all six offenses separately, appellant was

properly serving a five year term of community control when she violated the terms and

conditions of her probation; her entire sentence is not null and void; and any argument

that she should have been re-sentenced on the remaining five offenses is res judicata.

In State v. Fisher, the Ohio Supreme Court held, “although the doctrine of res judicata

does not preclude review of a void sentence, res judicata still applies to other aspects of
Stark County, Case No. 2018CA00060                                                        11


the merits of a conviction, including a determination of guilty and the lawful elements of

the ensuing sentence.” 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332.

       {¶25} The doctrine of res judicata bars a convicted defendant who was

represented by counsel from raising and litigating in any proceeding except an appeal

from that judgment, any issue which was raised or could have been raised on direct

appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). The arguments raised

by appellant concerning the original sentencing hearing and sentencing entry are based

on information available to her at the time she filed her prior appeals. Appellant previously

raised sentencing arguments and could have, but did not, raise this particular issue.

       {¶26} Based on the foregoing, appellant’s assignments of error are overruled.
Stark County, Case No. 2018CA00060                                             12


       {¶27} The April 19, 2018 judgment entry of the Stark County Court of Common

Pleas is affirmed.



By: Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur
