[Cite as State v. Johnson, 2017-Ohio-884.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2016-L-064
        - vs -                                   :

SAMUEL JOHNSON,                                  :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 06 CR
000035.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077. (For Plaintiff-Appellee).

Samuel Johnson, pro se, PID: A520-225, Lake Erie Correctional Institution, P.O. Box
8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Samuel Johnson, pro se, appeals the judgment of the Lake

County Court of Common Pleas denying his motion to vacate his sentence following his

conviction by a jury of aggravated burglary and two counts of felonious assault. At

issue is whether appellant’s motion is barred by res judicata. For the reasons that

follow, we affirm.
       {¶2}   On December 24, 2005, while appellant was at a Christmas party at the

apartment of the victim, his former girlfriend, he started arguing with her and became

violent. Following a physical altercation, the victim left her apartment and told appellant

she was going to call the police. After appellant left the apartment, the victim returned.

She heard a loud knocking at her door and appellant demanded she open it. When she

refused, he kicked the door open. He pushed her and she fell on her back. He jumped

on her and stabbed her numerous times with a butcher knife. Police were called and,

upon their arrival, they arrested appellant who was still on scene.

       {¶3}   The jury found appellant guilty of aggravated burglary and two counts of

felonious assault. He was sentenced to five years in prison for aggravated burglary and

seven years on each count of felonious assault.        The two seven-year terms were

ordered to be served concurrently to each other, but consecutively to the five-year term,

for a total of 12 years.

       {¶4}   Appellant appealed his conviction and sentence, challenging the

sufficiency and weight of the evidence, the court’s jury instructions, and his sentence.

In State v. Johnson, 11th Dist. Lake No. 2006-L-259, 2007-Ohio-5783, this court

affirmed his conviction.   The Ohio Supreme Court denied appellant’s discretionary

appeal at 117 Ohio St.3d 1441.

       {¶5}   Nine years later, on May 23, 2016, appellant filed the instant motion to

vacate his sentence, arguing his speedy trial rights and his right to effective assistance

of counsel were violated. The trial court denied the motion as being barred by res

judicata. Appellant appeals and asserts the following for his sole assignment of error:




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       {¶6}      “Mr. Johnson’s United States constitutional right to due process and

effective assistance of counsel was [sic] violated when Mr. Johnson’s right to a speedy

trial was violated when the State of Ohio failed to accord Mr. Johnson a preliminary

hearing within the mandated time frames of R.C. 2945.71 and Ohio Criminal Rule 5

leaving the Common Pleas Division jurisdictionless [sic] while Mr. Johnson [sic]

municipal assigned counsel was ineffective for failing to move for dismissal pursuant to

R.C. 2945.71.”

       {¶7}      Appellant argues that because he was arrested on December 24, 2005

and his preliminary hearing was not held until January 12, 2006, which was nine days

beyond the required ten-day limit in R.C. 2945.71 for the court to hold a preliminary

hearing, his speedy trial rights were violated. He also argues he was denied effective

assistance of counsel because his attorney did not file a motion to dismiss on speedy

trial grounds.

       {¶8}      The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution guarantee a criminal defendant the right to a speedy

trial. This guarantee is implemented in R.C. 2945.71, which provides the specific time

limits within which a person must be brought to trial. State v. Blackburn, 118 Ohio St.3d

163, 2008-Ohio-1823, ¶10.

       {¶9}      If a defendant demonstrates that his speedy trial right has been violated,

he may seek dismissal of the criminal charges. R.C. 2945.73. This statute provides:

“Upon motion made at or prior to the commencement of trial, a person charged with an

offense shall be discharged if he is not brought to trial within the time required by

sections 2945.71 and 2945.72 of the Revised Code.” Thus, the right to a speedy trial is




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not self-executing, but must be timely asserted to avoid such right being waived. State

v. Trummer, 114 Ohio App.3d 456, 470-471 (7th Dist.1996).

       {¶10} Appellant argues the violation of his speedy trial rights deprived the court

of subject-matter jurisdiction, resulting in his conviction being void.       However, the

Seventh District previously rejected the same argument. The court held that “speedy

trial issues do not eliminate a criminal court’s subject matter jurisdiction and do not

result in void proceedings.” State v. Helms, 7th Dist. Mahoning No. 14 MA 96, 2015-

Ohio-1708, ¶16.

       {¶11} The state argues that appellant’s arguments are barred by res judicata as

he failed to raise either his speedy-trial or ineffective-assistance argument in his direct

appeal. This court, in State v. Dudas, 11th Dist. Lake No. 2007-L-169, 2008-Ohio-3261,

¶17, stated:

       {¶12} In the context of criminal cases, “a convicted defendant is
             precluded under the doctrine of res judicata 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 appeal from that judgment.”
             State v. Szefcyk, 77 Ohio St.3d 93, 96 (1996).

       {¶13} In State v. Palmer, 7th Dist. Jefferson No. 11 JE 17, 2012-Ohio-5255, the

Seventh District held that res judicata bars the further litigation of any claim, including a

claim alleging a speedy trial error, that was ruled on in a direct appeal, or could have

been raised on direct appeal and was not. Id. at ¶6.

       {¶14} In addition, res judicata precludes a defendant from raising an ineffective-

assistance-of-counsel claim that was or could have been raised at trial or on direct

appeal. State v. Vinson, 11th Dist. Lake No. 2007-L-088, 2008-Ohio-3059, ¶32.




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      {¶15} We therefore hold the trial court did not err in denying appellant’s motion

to vacate his sentence.

      {¶16} For the reasons stated in this opinion, the assignment of error is overruled.

It is the order and judgment of this court that the judgment of the Lake County Court of

Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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