[Cite as State v. Martin, 2011-Ohio-1781.]


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

STATE OF OHIO                                        C.A. No.          25534

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RALPHONZO A. MARTIN                                  COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 88-08-1093

                                 DECISION AND JOURNAL ENTRY

Dated: April 13, 2011



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Ralphonzo Martin, appeals from the judgment of the

Summit County Court of Common Pleas, denying his motion for resentencing. This Court

affirms.

                                                 I

        {¶2}     In 1988, Martin was convicted of numerous offenses, including aggravated

murder, felonious assault, aggravated robbery, and having a weapon while under disability. This

Court affirmed Martin’s convictions on direct appeal, State v. Martin (“Martin I”) (Oct. 4, 1989),

9th Dist. No. 13954, and Martin sought post-conviction relief on several grounds in two separate

petitions. The trial court ultimately denied Martin’s petitions, and Martin appealed from the

denial of his second petition. This Court affirmed the trial court’s decision to deny the petition.

State v. Martin (“Martin II”) (Sept. 16, 1998), 9th Dist. No. 18607.
                                                  2


        {¶3}    In 2010, Martin filed a motion for resentencing on the basis that his convictions

were void under State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256. The State responded, and

the trial court denied Martin’s motion on July 23, 2010.

        {¶4}    Martin now appeals from the trial court’s denial of his motion and raises one

assignment of error for our review.

                                                 II

                                        Assignment of Error

        “THE TRIAL COURT ERRORED (sic) WHEN IT FOUND THE GUILTY
        VERDICT CONSTITUTES A FINDING OF GUILTY GREATER THAN THE
        LEAST DEGREE OF THE OFFENSE CHARGED.”

        {¶5}    In his sole assignment of error, Martin argues that the trial court erred by refusing

to grant his motion for resentencing. Specifically, he argues that his convictions are void under

State v. Pelfrey.

        {¶6}    “Res judicata bars the assertion of claims against a valid, final judgment of

conviction that have been raised or could have been raised on appeal.” State v. Ketterer, 126

Ohio St.3d 448, 2010-Ohio-3831, at ¶59. Martin obtained a valid, final judgment in 1988, which

this Court affirmed on direct appeal. See Martin I, supra. In Pelfrey, the Supreme Court

considered the plain language of R.C. 2945.75 and held as follows:

        “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 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 a criminal offense.” Pelfrey at syllabus.

Martin argues that his convictions should be vacated and he should be resentenced in accordance

with Pelfrey.

        {¶7}    Although the Supreme Court did not issue Pelfrey until 2007, the General

Assembly enacted the portion of R.C. 2945.75 at issue in Pelfrey in 1974. Pelfrey merely
                                                 3


applied the statute, as written. The record reflects, therefore, that Martin could have raised this

challenge on direct appeal after he was convicted in 1988. Res judicata bars Martin from raising

this argument now. See Ketterer at ¶59. Martin’s sole assignment of error is overruled.

                                                III

       {¶8}    Martin’s sole assignment of error is overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       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(E). 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.


                                                      BETH WHITMORE
                                                      FOR THE COURT

DICKINSON, J.
CONCURS
                                                4


BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶9}    I concur in the majority's judgment because unlike the defendant in State v.

Pelfrey, 112 Ohio St.3d 422, 2007–Ohio–256, at ¶4, Mr. Martin has not utilized the appropriate

procedural mechanism to raise this issue in this Court.



APPEARANCES:

RALPHONZO A. MARTIN, pro se, Appellant.

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