[Cite as State v. Alexander, 2014-Ohio-2710.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :     OPINION

                 Plaintiff-Appellee,            :
                                                      CASE NO. 2013-T-0100
        - vs -                                  :

RICKEY ALEXANDER,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 92 CR
605.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Alexander Rickey, pro se, PID: A281461, Lake Erie Correctional Institution, 501
Thompson Road, P.O. Box 8000, Conneaut, OH 44030 (Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Rickey Alexander, appeals from the September 18, 2013

judgment of the Trumbull County Court of Common Pleas, dismissing his motion to

vacate void judgment without a hearing.

        {¶2}     In the early morning hours of September 4, 1992, Anthony Borden was

found shot to death in the parking lot of the Niles Road Fruit Market in Howland

Township, Trumbull County, Ohio. Following an investigation by the police, appellant
was indicted by the Trumbull County Grand Jury on October 26, 1992 on one count of

aggravated murder, in violation of R.C. 2903.01(B), with a specification of an

aggravating circumstance pursuant to R.C. 2929.04(A)(7); and one count of aggravated

robbery, in violation of R.C. 2911.01 with a firearm specification.

       {¶3}   The matter proceeded to a jury trial beginning on August 19, 1993 and

concluding with the jury returning guilty verdicts on both charges and specifications on

August 26, 1993. On September 13, 1993, appellant was given a life sentence with 30

years actual incarceration on the aggravated murder charge, to run consecutive to a 10

to 25 year sentence on the aggravated robbery charge, and a three year sentence on

the firearm specification which would also be served consecutively.

       {¶4}   Appellant, who was represented by counsel, appealed his conviction and

sentence, Case No. 93-T-4948.         On November 29, 1996, this court affirmed the

judgment of the trial court. State v. Alexander, 11th Dist. Trumbull No. 93-T-4948, 1996

Ohio App. LEXIS 5418 (Nov. 29, 1996), appeal not accepted, 78 Ohio St.3d 1452

(1997).

       {¶5}   Fifteen years later on November 8, 2011, appellant filed a pro se “Motion

for Leave to File Delayed Motion for New Trial” pursuant to Crim.R. 33(A). The trial

court denied the motion on the ground that appellant was not unavoidably prevented

from discovering any new evidence. Appellant filed a second appeal with this court, pro

se, Case No. 2011-T-0120. On September 28, 2012, this court affirmed the judgment of

the trial court. State v. Alexander, 11th Dist. Trumbull No. 2011-T-0120, 2012-Ohio-

4468, motion denied by, 134 Ohio St.3d 1416, 2013-Ohio-158.




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       {¶6}   Thereafter, on September 9, 2013, appellant filed a pro se “Motion to

Vacate Void Judgment and Sentence Notwithstanding the Verdict, or, in the Alternative,

for a New Trial.” The state filed a response four days later. On September 18, 2013,

the trial court determined that appellant’s motion was barred by res judicata and

dismissed his motion without a hearing.       Appellant filed the instant appeal, pro se,

asserting three assignments of error for our review:

       {¶7}   “[1.] Appellant contends the trial court erred in entering a conviction of a

first-degree felony because the verdict form and the trial court’s verdict entry were

inadequate to support his conviction for aggravated murder and aggravated robbery.

       {¶8}   “[2.] Appellant submits that the trial court committed reversible error when

it submitted to the jury, verdict forms containing a statutory description of the offense of

aggravated murder and aggravated robbery, but omitted the offense’s essential

elements as instructed by the Court from the jury verdict forms.

       {¶9}   “[3.] The trial court’s imposition of consecutive sentences was contrary to

law and an abuse of discretion.”

       {¶10} In his first and second assignments of error, appellant argues the trial

court erred in convicting him because the verdict forms were inadequate. In his third

assignment of error, appellant contends the trial court erred in sentencing him.

       {¶11} Because appellant’s assignments of error are interrelated, as they are all

barred by the doctrine of res judicata, we will address them together.

       {¶12} “‘(P)rinciples of res judicata prevent relief on successive, similar motions

raising issues which were or could have been raised originally.’ Brick Processors, Inc.

v. Culbertson, 2 Ohio App.3d 478, * * *, paragraph one of the syllabus (8th Dist.1981).




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Stated differently, any issues that were raised or could have been raised by a defendant

at the trial court level or on direct appeal are res judicata and not subject to review in

subsequent proceedings. State v. Perry, 10 Ohio St.2d 175, * * *, paragraph nine of the

syllabus (1967); State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, ¶6, * * *.” State v.

Morris, 11th Dist. Trumbull No. 2013-T-0019, 2013-Ohio-5485, ¶20. (Parallel citations

omitted.)

       {¶13} Almost two decades after this court affirmed his conviction and sentence,

appellant now seeks a new trial based on purported R.C. 2945.75(A)(2) deficiencies in

his jury verdict forms. Appellant argues that under State v. Pelfrey, 112 Ohio St.3d 422,

2007-Ohio-256, the forms were improper.          He alleges that he should have been

convicted of lesser offenses. Appellant also asserts that the state failed to prove “prior

calculation and design” and that the phrase was not included in his verdict forms.

       {¶14}                R.C. 2945.75(A)(2) provides that “[w]hen the presence of

one or more additional elements makes an offense one of more serious degree * * * [a]

guilty verdict shall state either the degree of the offense of which the offender is found

guilty, or that such additional element or elements are present. Otherwise, a guilty

verdict constitutes a finding of guilty of the least degree of the offense charged.”

       {¶15} “[P]ursuant 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, supra, at ¶14.

       {¶16} We find that the trial court did not err by applying res judicata in this case

and appellant’s argument that the jury verdict forms were defective is precluded by res




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judicata. Appellant has already pursued a direct appeal from his conviction, where the

trial court’s decision was upheld. See Alexander, 1996 Ohio App. LEXIS 5418. In that

appeal, appellant asserted five assignments of error, raising issues regarding a

preemptory challenge, sealing of a file, hearsay statements, hearsay testimony, and

manifest weight. Appellant did not raise any errors related to defects in the jury verdict

forms under Pelfrey. He could have raised such errors in his direct appeal but failed to

do so. See State v. Garner, 11th Dist. Lake No. 2010-L-111, 2011-Ohio-3426, ¶22,

citing State v. Szefcyk, 77 Ohio St.3d 93, at the syllabus (1996); State v. Perri, 11th

Dist. Portage No. 2009-P-0014, 2009-Ohio-6153, ¶16.

       {¶17} Appellant concedes that he did not object below regarding the jury verdict

forms but asserts that Pelfrey allows parties to raise the issue even if was waived at the

trial court level. While this is true, Pelfrey does not hold that res judicata is inapplicable

in situations where the appellant has not only waived the issue at the trial court level but

also failed to raise the issue in his direct appeal. See Garner, supra, at ¶23. Appellate

courts that have addressed this issue have found that, where the appellant filed and

argued a direct appeal but did not raise any arguments under Pelfrey or related to the

inadequacy of the jury verdict form, res judicata applies to subsequent appeals. Id.; see

State v. Evans, 9th Dist. Wayne No. 10CA0027, 2011-Ohio-1449, ¶9 (holding that

“because Evans could have raised issues related to the jury verdict forms in his direct

appeal, he is foreclosed from raising the issue at this time”); State v. Foy, 5th Dist. Stark

No. 2009-CA-00239, 2010-Ohio-2445, ¶8 (where the appellant failed to raise the issue

of jury verdict form defects under Pelfrey during his direct appeal, res judicata barred

him from raising the issue in a subsequent appeal).




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       {¶18} Although we need not address the merits of appellant’s claims as they are

precluded by res judicata, we note that the lower court’s jury verdict forms contain no

deficiencies. We further note that aggravated murder and aggravated robbery do not

contain different degrees of seriousness. See State v. Markins, 4th Dist. Scioto No.

10CA3387, 2013-Ohio-602, ¶77. In addition, with regard to appellant’s “prior calculation

and design” argument, aggravated murder under R.C. 2903.01 at the time appellant

was sentenced in 1993 stated in part:1

       {¶19} “(A) No person shall purposely, and with prior calculation and design,

cause the death of another.

       {¶20} “(B) No person shall purposely cause the death of another while

committing or attempting to commit, or while fleeing immediately after committing or

attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery

or robbery, aggravated burglary or burglary, or escape.”

       {¶21} Contrary to appellant’s assertion, we note that “prior calculation and

design” is not at issue in this case.            Appellant was charged with one count of

aggravated murder in violation of R.C. 2903.01(B). Section (B) does not include the

element of “prior calculation and design.”            Rather, Section (A) includes the “prior

calculation and design” element.          However, appellant was not charged under that

section. Thus, appellant’s argument that the state failed to prove “prior calculation and

design” and that the phrase was not included in his verdict forms is not only barred by

res judicata but is completely groundless.



1. See also State v. Souders, 5th Dist. Stark No. 1994CA00148, 1995 Ohio App. LEXIS 5982 (Nov. 6,
1995) (citing the former version of R.C. 2903.01(A) and (B)). We note that the current version of R.C.
2903.01(A) and (B) is essentially similar to the former version.


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       {¶22} Finally, appellant also now challenges his maximum, indeterminate 10 to

25 year sentence on the aggravated robbery charge. That sentence was handed down

over 20 years ago on September 13, 1993. As stated, appellant, who was represented

by counsel, appealed his conviction, Case No. 93-T-4948. However, he did not raise

any sentencing issues. Thus, although appellant could have raised this issue in his

direct appeal, he did not, so it is barred by res judicata. See State v. Bradley, 11th Dist.

Ashtabula No. 2003-A-0102, 2006-Ohio-196, ¶18.

       {¶23} Although we need not address the merits of appellant’s sentencing claim

as it is precluded by res judicata, we note that the lower court imposed a proper

sentence. Appellant was sentenced prior to S.B. 2 which went into effect in 1996 and

significantly overhauled Ohio’s sentencing scheme.           At the time of appellant’s

conviction, the trial court correctly imposed penalties available for an aggravated felony

of the first degree, to wit: an indeterminate term of 5, 6, 7, 8, 9, or 10 to 25 years. See,

e.g., State v. Canfield, 9th Dist. Medina No. 03CA0078-M, 2004-Ohio-2123, ¶11. Thus,

appellant’s sentence was within the statutory range at the time that it was imposed.

       {¶24} Appellant’s three assignments of error are barred by res judicata and are

without merit.

       {¶25} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




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