[Cite as State v. Wolfe, 2018-Ohio-1952.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  C.A. CASE NO. 27785
                                                  :
 v.                                               :  T.C. NO. 1993-CR-556
                                                  :
 JAVALEN WOLFE                                    :  (Criminal Appeal from
                                                  :  Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

                              Rendered on the 18th day of May, 2018.

                                             ...........

MATHIAS H. HECK, JR., by SARAH HUTNIK, Atty. Reg. No. 95900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee


JAVALEN WOLFE, #287364, Madison Correctional Institute, P.O. BOX 740, London,
Ohio 43140
      Defendant-Appellant, Pro se

                                            .............
                                                                                             -2-


DONOVAN, J.

         {¶ 1} Defendant-appellant Javalen Wolfe, pro se, appeals from a decision of the

Montgomery County Court of Common Pleas overruling his Motion to Dismiss on Double

Jeopardy Grounds. On October 26, 2017, Wolfe filed a timely notice of appeal with this

Court.

         {¶ 2} We set forth the history of the case in State v. Wolfe, 2d Dist. Montgomery

Nos. 26681, 26729, 26983, 2016–Ohio–4897, and repeat it herein in pertinent part:

                On October 6, 1993, the Montgomery County Grand Jury returned

         an indictment charging Wolfe with one count of aggravated murder in

         violation of R.C. 2903.01(B), one count of aggravated robbery in violation

         of R.C. 2911.01(A)(1), and two firearm specifications. The charges

         stemmed from the February 7, 1993 shooting death of Todd Grills. Wolfe

         pled not guilty to the charges and the matter went to a jury trial. Wolfe's first

         trial ended in a hung jury, whereas his second trial resulted in his conviction

         for the lesser-included offense of murder with a firearm specification. The

         aggravated robbery charge was dismissed at the request of the State by an

         entry of nolle prosequi dated January 20, 1994. The entry was subsequently

         journalized on January 31, 1994.

                Immediately following trial, the trial court sentenced Wolfe to serve

         an indefinite prison term of 15 years to life for murder that was to be served

         consecutive to a three-year prison sentence for the attendant firearm

         specification. On January 25, 1994, the trial court issued a judgment entry

         reflecting that sentence. The entry also ordered Wolfe to pay court costs
                                                                                         -3-


       and awarded him jail-time credit, but left blank the amount of court costs to

       be imposed and the days of jail-time credit to be awarded.

              Wolfe subsequently filed a direct appeal from his conviction and

       sentence, which we affirmed in State v. Wolfe, 2d Dist. Montgomery No.

       14420, 1995 WL 140717 (Mar. 29, 1995). Nearly 20 years later, on June

       4, 2014, Wolfe filed a pro se Motion to Re-hear and Correct Termination

       Entry, wherein he argued that the January 25, 1994 termination entry

       journalizing his conviction and sentence was defective.       The trial court

       overruled the motion and Wolfe appealed from that decision. Upon review,

       we held that the trial court should have corrected the judgment entry to

       include, among other things, the amount of court costs imposed and a jail-

       time credit of 284 days. See State v. Wolfe, 2d Dist. Montgomery No. 26313,

       2015–Ohio–1585, ¶ 1, 7. We also held that the judgment entry should be

       corrected to reflect that the aggravated robbery charge was dismissed by

       nolle prosequi. Id. at ¶ 1, 9. Accordingly, we reversed the trial court's

       decision overruling Wolfe's Motion to Re–Hear and Correct Termination

       Entry and remanded the matter for further proceedings consistent with our

       opinion. Id. at ¶ 1, 10.

Id. at ¶¶ 2, 3, and 4.

       {¶ 3} While his second appeal was pending, Wolfe filed a pro se Motion to Correct

Clerical Mistake, wherein he argued that there was no final appealable order with respect

to his conviction because the trial court failed to journalize the jury's verdict. Wolfe, 2d

Dist. Montgomery Nos. 26681, 26729, 26983, 2016–Ohio–4897, at ¶ 5. On May 21,
                                                                                        -4-


2015, the trial court issued a nunc pro tunc termination entry, which made the corrections

that we ordered on remand. Id. at ¶ 6. Thereafter, on September 22, 2015, Wolfe filed a

pro se Motion to Record the Verdict wherein he argued that the verdict was not properly

journalized, the trial court improperly journalized an acquittal for aggravated murder, the

trial court erred in permitting the jury to consider the lesser-included offense of murder,

and the evidence adduced at trial did not support his murder conviction. Id. at ¶¶ 22, 23.

The trial court overruled the motion, and Wolfe appealed. We consolidated Wolfe’s

appeals and overruled all off his assignments of error, thereby affirming the judgment of

the trial court. Id. at ¶ 25.

       {¶ 4} On August 15, 2017, Wolfe filed a Motion to Dismiss on Double Jeopardy

Grounds. In his motion, Wolfe made the following arguments, to wit: 1) after his initial

indictment for aggravated murder was dismissed, he was never re-indicted but was

convicted for the same murder; 2) the trial court did not have the jurisdiction to convict

him on the lesser included offense of murder. The trial court overruled Wolfe’s motion in

a decision issued on September 26, 2017, finding that the arguments he raised were

barred by res judicata.

       {¶ 5} It is from this judgment that Wolfe now appeals.

       {¶ 6} Wolfe’s sole assignment of error is as follows:

       {¶ 7} “TRIAL      COURT   ERRED       WHEN    IT   DENIED    THE    DEFENDANT-

APPELLANT’S         MOTION      ON   ISSUE    OF    DOUBLE      JEOPARDY        WITHOUT

ENTERTAINING THE ARGUMENT OF THE DOUUBLE JEOPARDY THAT WAS

PRESENTED.”

       {¶ 8} In his sole assignment, Wolfe contends that the trial court erred when it
                                                                                         -5-


denied his Motion to Dismiss on Double Jeopardy Grounds, finding that his arguments

were barred by the doctrine of res judicata. Initially, we note that in the direct appeal of

his conviction and sentence for murder, Wolfe presented an assignment of error asserting

a violation of the Double Jeopardy provisions of the United States Constitution and the

Ohio Constitution. Wolfe, 2d Dist. Montgomery No. 14420, 1995 WL 140717, *1, 2 (Mar.

29, 1995).     As previously stated, we overruled all of Wolfe’s assignments of error,

including his argument relating to Double Jeopardy, and affirmed the judgment of the trial

court. Id. at *9.

       {¶ 9} “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 raised or could have been raised by the defendant at the trial, which

resulted in that judgment of conviction, or on an appeal from that judgment.” State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

Accordingly, Wolfe's double jeopardy argument is barred by the doctrine of res judicata.

       {¶ 10} Wolfe also argues that the trial court lacked jurisdiction to convict him of

murder. Again, Wolfe raised the same issue in a previous appeal, and we held that his

claim was barred by res judicata. See Wolfe, 2d Dist. Montgomery Nos. 26681, 26729,

26983, 2016–Ohio–4897, at ¶ 23.         Thus, any argument regarding the trial court’s

jurisdiction to convict Wolfe of murder is barred herein, as well. Because both of Wolfe’s

arguments are barred by res judicata, the trial court did not err when it overruled his

Motion to Dismiss on Double Jeopardy Grounds without considering the merits of the

motion.
                                                                                       -6-


       {¶ 11} Wolfe’s sole assignment of error is overruled.

       {¶ 12} Wolfe’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

                                        .............

WELBAUM, P.J. and FROELICH, J., concur.


Copies mailed to:

Sarah Hutnik
Javalen Wolfe
Hon. Dennis J. Adkins
