      [Cite as State v. Craig, 2018-Ohio-1279.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                                ATHENS COUNTY

STATE OF OHIO,                                    :
                                                  :     Case No. 17CA29
      Plaintiff-Appellee,                         :
                                                  :
      vs.                                         :     DECISION AND JUDGMENT
                                                  :     ENTRY
FREDERICK JOSEPH CRAIG, JR.,                      :
                                                  :
      Defendant-Appellant.                        :     Released: 03/29/18

                                         APPEARANCES:

Frederick J. Craig, Jr., Caldwell, Ohio, Pro Se Appellant.

Keller J. Blackburn, Athens County Prosecutor, and Merry M. Saunders, Assistant
Athens County Prosecutor, Athens, Ohio, for Appellee.


McFarland, J.

      {¶1} Frederick Joseph Craig, Jr., appeals the July 31, 2017 Judgment Entry

by which he was resentenced to a consecutive prison term, an aggregate total of 16

years in the state penal system. Appellant contends that he, a first-time felon, was

denied his Sixth Amendment right to the effective assistance of counsel throughout

the trial court and appellate proceedings. Having reviewed Appellant’s

assignments of error, the record, and the pertinent case law, we find his arguments

are barred by application of the doctrine of res judicata. As such, we overrule his

assignments of error and affirm the judgment of the trial court.
Athens App. No. 17CA29                                                          2

                                     FACTS

      {¶2} Following a domestic incident which occurred in March 2015 at the

home of Appellant’s ex-spouse, Julie Nott, Appellant was indicted by the Athens

County Grand Jury as follows:

      Count 1, attempted murder, R.C. 2923.02/2903.02(A), a felony of the
      first degree;

      Count 2, attempted murder, R.C. 2923.02/2903.02(B), a felony of the
      first degree;

      Count 3, felonious assault, R.C. 2903.11(A)(1), a felony of the second
      degree;

      Count 4, felonious assault, R.C.2903.11(A)(2), a felony of the second
      degree;

      Count 5, aggravated robbery, R.C. 2911.01(A)(1), a felony of the first
      degree;

      Count 6, aggravated robbery, R.C. 2911.01(A)(3), a felony of the first
      degree;

      Count 7, aggravated burglary, R.C. 2911.11(A)(2), a felony of the first
      degree;

      Count 8, aggravated burglary, R.C. 2911.11(A)(1), a felony of the first
      degree;

      Count 9, tampering with evidence, R.C. 2921.12(A)(1), a felony of the
      third degree; and,

      Count 10, domestic violence, R.C. 2919.25(A), a misdemeanor of the
      first degree.
Athens App. No. 17CA29                                                          3

      {¶3} The altercation between Appellant and his ex-spouse involved the use

of a knife as a weapon. Ms. Nott sustained serious injuries to her stomach, chest,

side, and thumb. A complete recitation of the underlying facts and circumstances

surrounding the incident is set forth in paragraphs 2-7 of our decision in State v.

Craig, 4th Dist. Athens No. 15CA22, 2017-Ohio-4342 (“Craig I”).

      {¶4} On June 4, 2015, Appellant entered a plea agreement and was

subsequently convicted of attempted murder of Julie Nott. He was also convicted

of two counts of felonious assault, two counts of aggravated robbery, two counts of

aggravated burglary, tampering with evidence, and domestic violence all arising

from the same domestic incident. On June 22, 2015, Appellant was sentenced to a

consecutive prison term for an aggregate total of 26 years in the state penal system.

      {¶5} Appellant appealed his sentence to this court and we found merit to

two issues raised. We reversed the judgment of the trial court, in part, and

remanded for a limited resentencing. See Craig I at ¶ 54. Appellant’s resentencing

occurred on July 24, 2017. On that date, the trial court sentenced him to

consecutive sentences for an aggregate total of 16 years in the state penal system.

      {¶6} On August 24, 2017, Appellant filed timely notice of appeal of the trial

court’s resentencing entry. On September 1, 2017, Appellant also filed a motion to

reopen his appeal pursuant to App.R. 26(B), asserting that his appellate counsel

was ineffective because counsel should have raised two additional arguments
Athens App. No. 17CA29                                                                                       4

within the initial appeal: (1) ineffective assistance of counsel throughout the trial

court proceedings; and (2) deprivation of various constitutional rights which

culminated in his pleading guilty to several of the counts contained in the

indictment filed against him.1 Appellant also appealed our decision in Craig I to

the Supreme Court of Ohio.

         {¶7} On November 1, 2017, Appellant’s appeal to the Supreme Court was

not accepted for review. See State v. Craig, 151 Ohio St.3d 1428, 2017-Ohio-8371,

84 N.E.3d 1065 (Table). In our decision journalized December 8, 2017 in the

Athens County Common Pleas Court, we denied Appellant’s motion to reopen his

appeal. We found Appellant’s assignments of error set forth in the motion to

reopen were barred by the doctrine of res judicata as they could have been raised in

his direct appeal.

         {¶8} In Appellant’s current appeal of the resentencing entry, he asserts the

same assignments of error and arguments as he did in the motion to reopen his

appeal.

                                     ASSIGNMENTS OF ERROR

         “I. THE DEFENDANT-APPELLANT, A FIRST TIME FELON
         WHO WAS UNFAMILIAR WITH THE LEGAL PROCESS, WAS
         DENIED HIS SIXTH AMENDMENT RIGHTS TO EFFECTIVE
         ASSISTANCE OF COUNSEL THROUGHOUT THE TRIAL

1
  In Appellant’s brief submitted September 1, 2017 in the appeal of the resentencing entry, Appellant indicates the
brief will serve as the only brief in both the resentencing appeal and the motion to reopen proceeding, as he “seeks”
to submit a “Consolidated Appeal Brief.” However, Appellant did not file a motion to consolidate the matters, and
the appellate record reflects that they were not consolidated sua sponte.
Athens App. No. 17CA29                                                        5

      COURT PROCEEDINGS AND PLAIN ERROR WAS
      COMMITTED, WITH HARM AND PREJUDICE OF GUILTY
      PLEAS TO THE TAMPERING WITH EVIDENCE COUNTY(SIC.)
      AND THE THREE COUNTS OF AGGRAVATED BURGLARY AS
      THESE OFFENSES WERE NOT COMMITTED.

      II. THE TRIAL COURT, STATE, AND DEFENSE COUNSEL
      THROUGH THEIR COLLECTIVE ACTIONS HARMED AND
      PREJUDICED THIS DEFENDANT-APPELLANT, THEREBY
      VIOLATING HIS DUE PROCESS, EQUAL PROTECTION,
      DOUBLE JEOPARDY, STATUTORY, AND CONSTITUTIONAL
      RIGHTS BY ALLOWING HIM TO PLEAD GUILTY TO AND TO
      CONVICT AND SENTENCE HIM TO CONSECUTIVE PRISON
      TERMS OF TWO AND SIX YEARS RESPECTIVELY FOR
      TAMPERING WITH EVIDENCE AND THREE AGGRAVATED
      BURGLARY COUNTS FOR WHICH HE NOR ANYONE
      COMMITTED.”

                            STANDARD OF REVIEW

      {¶9} When reviewing felony sentences, we apply the standard of review set

forth in R.C. 2953.08(G)(2). State v. Scoggins, 4th Dist. Scioto No. 16CA3767,

2017-Ohio-8989, ¶ 96; State v. Brewer, 2014–Ohio–1903, 11 N.E.3d 317, ¶ 33

(4th Dist.) (“we join the growing number of appellate districts that have abandoned

the Kalish plurality's second step abuse-of-discretion standard of review; when the

General Assembly reenacted R.C. 2953.08(G)(2), it expressly stated that ‘[t]he

appellate court's standard of review is not whether the sentencing court abused its

discretion’ ”); see also State v. Graham, 4th Dist. Highland No. 13CA11, 2014–

Ohio–3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court may

increase, reduce, modify, or vacate and remand a challenged felony sentence if the
Athens App. No. 17CA29                                                                                    6

court clearly and convincingly finds either that “the record does not support the

sentencing court's findings” under the specified statutory provisions or “the

sentence is otherwise contrary to law.”

        “Clear and convincing evidence is that measure or degree of proof
        which is more than a mere “preponderance of the evidence,” but not
        to the extent of such certainty as is required “beyond a reasonable
        doubt” in criminal cases, and which will produce in the mind of the
        trier of facts a firm belief or conviction as to the facts sought to be
        established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118
        (1954), paragraph three of the syllabus.” State v. Lykins, 4th Dist.
        Adams No. 17CA1040, 2017-Ohio-9390, ¶ 8, quoting State v.
        Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at
        ¶ 22.

                                      LEGAL ANALYSIS

        {¶10} We consider Appellant’s assignments of error jointly herein. As

indicated above, in this appeal of the resentencing entry, Appellant raises the same

arguments as he did in his motion to reopen his appeal. Since we have recently

resolved his motion for reopening, we will limit our discussion to his claims of

ineffective assistance of trial counsel.

        {¶11} Despite entering pleas to seven counts, Appellant now submits actual

innocence as to the aggravated burglary and tampering with evidence counts.2

Appellant entered pleas to two counts of aggravated burglary and directs our

attention to that statute, R.C. 2911.11, which provides in pertinent part:


2
  In his pleadings, Appellant has repeatedly stated he entered pleas to three counts of aggravated burglary. The
record demonstrates he entered pleas to two counts of aggravated robbery and two counts of aggravated burglary.
Athens App. No. 17CA29                                                                  7

           “(A) No person, by force, stealth, or deception, shall trespass in an
           occupied structure or in a separately secured or separately occupied
           portion of an occupied structure, when another person other than an
           accomplice of the offender is present, with purpose to commit in the
           structure or in the separately secured or separately occupied portion of
           the structure any criminal offense, if any of the following apply:

           (1) The offender inflicts, or attempts or threatens to inflict physical
               harm on another;

           (2) The offender has a deadly weapon or dangerous ordnance on or
               about the offender's person or under the offender's control.* * *.”
               (Emphasis added)

           {¶12} Appellant contends that there was no evidence that he “by force,

stealth, or deception” trespassed into Julie Nott’s house.3 He claims he was at his

ex-spouse’s house by invitation.

           {¶13} Appellant also entered a plea to Count 9, tampering with evidence.

This conviction arose from evidence that after the domestic incident between the

ex-spouses, Appellant threw the knife involved into an open bag of dog food in the

kitchen and then exited Ms. Nott’s house. He directs us to the tampering with

evidence statute, Revised Code section R.C. 2921.12, which provides:

           “(A) No person, knowing that an official proceeding or investigation
           is in progress, or is about to be or likely to be instituted, shall do any
           of the following:

           (1) Alter, destroy, conceal, or remove any record, document, or thing,
           with purpose to impair its value or availability as evidence in such
           proceeding or investigation; * * *.”


3
    The aggravated burglary counts were Count 7 and Count 8 of the indictment.
Athens App. No. 17CA29                                                          8

      {¶14} Appellant claims he tossed the knife into a bag of dog food as the

police arrived, for the purpose of not having a weapon on his person (as opposed to

the purpose of preventing the discovery of the knife). He further claims that he

informed the police of the knife’s location. Appellant concludes there was no

evidence of intent to conceal the knife that was used in the altercation and

therefore, the element supporting a tampering with evidence conviction was

lacking.

      {¶15} In summary, Appellant argues that his court-appointed counsel was

ineffective for failing to properly investigate the case, inform him of the lack of

relevant evidence, or otherwise challenge several of the counts of the indictment.

Appellant maintains that had his trial counsel challenged the offenses and

“informed him” of the lack of evidence, Appellant clearly would not have pleaded

to the offenses.

      {¶16} When we recently denied Appellant’s motion to reopen his case, we

found his arguments regarding actual innocence as well as the knowing and

voluntary nature of his plea, were barred by the doctrine of res judicata. We cited

another Fourth District case, State v. Snyder, 4th Dist. Pike No. 16CA881, 2017-

Ohio-8091, at ¶ 28:

      “Under the doctrine of res judicata, a final judgment of conviction
      bars a convicted defendant who was represented by counsel from
      raising and litigating in any proceeding, except an appeal from that
      judgment, any defense or any claimed lack of due process that was
Athens App. No. 17CA29                                                           9

      raised or could have been raised by the defendant at trial, which
      resulted in that judgment of conviction, or on an appeal from that
      judgment.” Snyder, supra, quoting State v. Szefcyk, 77 Ohio St.3d 93,
      671 N.E.2d 233 (1996), syllabus. Accord State v. Pulliam, 4th Dist.
      Scioto No. 16CA3759, 2017–Ohio–127, ¶ 10.”

      {¶17} In our decision in Snyder, we also cited State v. Young, 8th Dist.

Cuyahoga No. 104861, 2017-Ohio- 5579. There, Young entered guilty pleas to

various felony counts. Young appealed the length of his sentence and the appellate

court affirmed. Young then filed a motion to vacate his guilty plea pursuant to

Crim.R. 32.1, which was denied. The Young decision, citing the doctrine of res

judicata, held at ¶ 7:

      “Young could have raised any argument regarding ineffective
      assistance of counsel relating to his plea * * * in his direct appeal.
      Because he did not do so, his ineffective assistance of counsel claim is
      now barred by res judicata; * * *.”

      {¶18} In Appellant’s appeal of his resentencing, the doctrine of res judicata

also applies. Appellant, like Young, has already had his direct appeal and did not

challenge his convictions, only the sentence he received. The same arguments

Appellant now raises were known or should have been available to him to be

raised at the time of his direct appeal. Because he did not raise the issue of trial

counsel’s alleged ineffectiveness relating to his plea in his direct appeal, his claim

is now barred by application of the doctrine of res judicata.

      {¶19} For the foregoing reasons, we overrule Appellant’s assignments of

error and affirm the judgment of the trial court.
Athens App. No. 17CA29                 10

                         JUDGMENT AFFIRMED.
Athens App. No. 17CA29                                                           11

                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Athens County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,


                                 BY: ______________________________
                                     Matthew W. McFarland


                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
