[Cite as State v. Troglin, 2009-Ohio-5276.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                        UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 14-09-04

        v.

MARCUS TROGLIN,                                          OPINION

        DEFENDANT-APPELLANT.



                   Appeal from Union County Common Pleas Court
                              Trial Court No. 04CR23

                   Judgment Affirmed in Part and Reversed in Part

                             Date of Decision: October 5, 2009




APPEARANCES:

        Joshua A. Peistrup for Appellant

        David W. Phillips, III for Appellee
Case No. 14-09-04


SHAW, J.

       {¶1} The appellant, Marcus L. Troglin, appeals the January 27, 2009

judgment entry of the Common Pleas Court of Union County, Ohio, sentencing

him to an aggregate sentence of eleven years in prison, a total fine of $40,000.00,

to pay the cost of prosecution, including $500.00 toward the cost of indigent

counsel, to pay restitution, and to pay for his stay in the local jail.

       {¶2} The facts relevant to this appeal are as follows. In February 2004,

the Union County Grand Jury indicted Troglin for one count of felonious assault

in violation of R.C. 2903.11(A), a felony of the second degree; one count of

endangering children in violation of R.C. 2919.22(A), a felony of the third degree;

and one count of endangering children in violation of R.C. 2919.22(B)(1), a felony

of the third degree. All counts of the indictment arose from an incident wherein

Troglin physically abused his then seven-month-old son.

       {¶3} In September 2004, a jury convicted Troglin on all three counts of

the indictment. Subsequently, the trial court sentenced Troglin to a seven-year

prison term on the felonious assault conviction and to a four-year term on each of

the endangering children convictions, with the endangering children sentences to

be served concurrently to each other but consecutive to the felonious assault

sentence, for an aggregate sentence of eleven years. The court also determined

that Troglin had 40 days of jail time credit to be applied to this sentence.



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Additionally, the trial court ordered Troglin to pay costs, restitution for the

victim’s medical care, a $20,000 fine for the felonious assault conviction, and a

$10,000 fine for each of the endangering children convictions.

       {¶4} In October 2004, Troglin appealed his conviction and sentence. In

August 2005, while his direct appeal was pending, Troglin filed a pro se petition

for post-conviction relief. On December 2, 2005, the trial court denied Troglin’s

petition for post-conviction relief. Also, on December 12, 2005, we decided

Troglin’s direct appeal and reversed and remanded the trial court’s sentence

insofar as the second count of the indictment of endangering children in violation

of R.C. 2919.22(B)(1) should have been classified as a second-degree felony

instead of a third-degree felony. See State v. Troglin, 3rd Dist. No. 14-04-41,

2005-Ohio-6562.     However, all other aspects of Troglin’s first appeal were

affirmed. Id. In doing so, we found that, while the typographical error in the

indictment did not render the indictment invalid, the trial court erred in sentencing

him for a third-degree felony on that offense and provided that “we must reverse

the sentencing of the trial court as to the sentence imposed on Troglin’s violation

of R.C. 2919 .22(B)(1).” Id. at ¶ 54. (hereinafter referred to as “Troglin I” ).

       {¶5} On December 16, 2005, Troglin appealed from the trial court’s

denial of his petition for post-conviction relief. In June 2006, we affirmed the trial




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court’s denial of Troglin’s August 2005 petition for post-conviction relief. See

State v. Troglin, 3rd Dist. No. 14-05-56, 2006-Ohio-2791.

       {¶6} In November 2006, on remand from Troglin I, the trial court

conducted a resentencing hearing. The trial court resentenced Troglin to a seven-

year prison term for the felonious assault conviction and to a four-year prison term

on each of the endangering children convictions, all to be served consecutive to

one another, for an aggregate sentence of fifteen years. Again, the court calculated

40 days of local jail time credit. The trial court also ordered Troglin to pay the

cost of prosecution, including $500.00 towards the cost of indigent counsel,

restitution, an aggregate fine of $40,000.00, and for his stay at the local jail.

       {¶7} This sentence was also appealed. See State v. Troglin, 3rd Dist. No.

14-06-57, 2007-Ohio-4368 (hereinafter referred to as “Troglin II”). In Troglin II,

the appellant asserted five assignments of error concerning his sentences on all

three counts of the indictment. None of these assignments of error challenged the

court’s decision to order Troglin to pay $500.00 towards his indigent counsel fee

and to pay for his stay in the local jail. Id.

       {¶8} This Court did not address all of Troglin’s arguments in Troglin II.

Instead, we noted that Troglin’s “argument regarding the order to pay the costs of

his September 2004 sentencing, the $51,608.22 in restitution, the $20,000 fine for

the felonious assault conviction, and the $10,000 fine for the third degree felony



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endangering conviction was barred by res judicata[,]” because he failed to

challenge them in his first direct appeal and we affirmed them in Troglin I. Id. at ¶

35.

       {¶9} After considering the issues properly before us, Troglin II was

affirmed in part, reversed in part, and the cause remanded. Id. at 45. We reversed

Troglin II solely on the trial court’s decision to order all three prison sentences to

be served consecutively rather than its original decision to order the two

endangering children counts to be served concurrently to one another but

consecutive to the felonious assault conviction. Id. at ¶¶ 22-23. However, rather

than vacating the sentence and requiring the trial court to conduct another

sentencing hearing, we elected to modify the prison sentence to its original eleven

year aggregate amount and remanded it to the trial court “solely for the execution

of this modified sentence[,]” pursuant to the authority granted to this Court by

R.C. 2953.08(G)(2)(b). Id. at ¶ 45.

       {¶10} Despite this order, the trial court conducted another sentencing

hearing on January 27, 2009. Troglin was present at this hearing, having been

conveyed from the Department of Rehabilitation and Correction to the local jail

pursuant to an order issued by the trial court. The court then re-issued all of its

prior orders, with the exception of modifying the one count of endangering

children to be served concurrently with the other count of endangering children.



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The trial court also re-calculated the time previously served by Troglin, including

41 days of local jail time credit (the additional day was added for the day he spent

at the local jail for the January 27, 2009 hearing). This appeal followed, and

Troglin now asserts two assignments of error.

                       ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ERRED BY ORDERING THE
       DEFENDANT-APPELLANT TO PAY $500.00 FOR THE
       COSTS OF PROVIDING INDIGENT COUNSEL.

                       ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED IN ORDERING THE
       DEFENDANT-APPELLANT TO PAY FOR HIS STAY AT
       TRI-COUNTY JAIL UNDER R.C. 2929.19(B)(7).

       {¶11} We elect to address these assignments of error together.

       {¶12} Troglin now maintains that the trial court erred in ordering him to

pay $500.00 for the cost of indigent counsel without first determining whether he

had the current or future ability to pay for indigent counsel in violation of R.C.

2941.51(D). He also contends that the trial court erred in requiring him to pay for

the 41 days he stayed in the local jail (“Tri-County Jail”) in violation of the

mandates of R.C. 2929.19(B)(7). Notably, Troglin did not raise these issues in his

previous appeal.

       {¶13} The Ohio Supreme Court has previously held that “[u]nder the

doctrine of res judicata, a final judgment of conviction bars a convicted defendant



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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 * * * on an

appeal from that judgment.” (Emphasis added.) State v. Perry (1967), 10 Ohio

St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus; see also State v.

Evans, 113 Ohio St.3d 100, 863 N.E. 2d 113, 2007-Ohio-861; State v. Saxon, 109

Ohio St.3d 176, 846 N.E. 2d 824, 2006-Ohio-1245.

       {¶14} As previously noted, we applied the doctrine of res judicata in

Troglin II to those parts of his sentence that he failed to challenge in Troglin I.

Troglin II, 2007-Ohio-4368, at ¶ 35. Similarly, in Troglin II, the appellant failed

to challenge the trial court’s decision to assess him $500.00 for indigent counsel

fees and for the cost of his local incarceration. Having failed to raise these issues

in Troglin II, these assignments of error are barred by res judicata. Furthermore,

the sole purpose of remand in Troglin II was not to resentence the appellant, but to

simply execute this Court’s modification of his sentence regarding concurrent

sentences on the endangering children counts. Therefore, these issues have not

been somehow renewed by the filing of the January 27, 2009 judgment entry.

       {¶15} Nevertheless, Troglin was erroneously conveyed to the local jail for

his January 27, 2009 hearing. Under these circumstances, the trial court did not

have to hold a third sentencing hearing. Thus, there was no need to convey



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Troglin to the local jail for purposes of a hearing. As such, he should not have to

pay the cost incurred due to an error on the part of the trial court.

       {¶16} For all of these reasons, the first assignment of error is overruled. In

addition, the second assignment of error is overruled as to the first 40 days of local

jail time but sustained as to the 41st day of local jail time. Accordingly, the

January 27, 2009 judgment of the Common Pleas Court of Union County, Ohio, is

affirmed in part, reversed in part, and the portion of judgment ordering that

Troglin pay for his one day stay in the local jail (Tri-County Jail) on January 27,

2009, is vacated.

                                                          Judgment Affirmed in Part
                                                               and Reversed in Part

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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