[Cite as State v. Breeze, 2016-Ohio-1457.]


                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                       No. 15AP-1027
v.                                                 :                (C.P.C. No. 90CR-4040)

Craig Breeze,                                      :            (REGULAR CALENDAR)

                 Defendant-Appellant.              :



                                             D E C I S I O N

                                       Rendered on April 7 , 2016

                 On brief: Ron O'Brien, Prosecuting                 Attorney,   and
                 Barbara A. Farnbacher, for appellee.

                 On brief: Craig Breeze, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Craig Breeze, appeals a decision of the Franklin
County Court of Common Pleas, rendered on October 14, 2015, denying the latest in a
series of motions he has filed regarding the imposition of costs in his case Franklin C.P.
No. 90CR-4040. Because res judicata controlled the outcome of the latest motion, we
affirm the decision of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On August 22, 1990, a grand jury indicted Breeze for four counts of
aggravated murder, two counts of attempted aggravated murder, and one count of
aggravated burglary. Breeze pled, "not guilty," four days later on August 26, 1990. After
investigation, discovery, pretrial hearings, and jury selection, trial proceedings began on
November 18, 1991. Following trial and deliberations, the jury delivered a verdict on
November 26, 1991, finding Breeze guilty of all charges. Soon after, on December 17,
1991, the court reconvened before the jury for the mitigation phase of the trial. Following
                                                                                         2
No. 15AP-1027

the presentation of evidence and deliberations, the jury found that the aggravating
circumstances of the murders did not outweigh the mitigating circumstances and
therefore declined to impose the death penalty.
      {¶ 3} On January 13, 1992, the trial court held a sentencing hearing. At the
hearing, the trial court sentenced Breeze to a life sentence with parole eligibility in 30
years on each of the aggravated murders consecutively. The trial court also imposed 10
years on the aggravated burglary, 3 years on the weapon specification to the burglary, and
7 to 25 years on the attempted murder count with each sentence to be served
consecutively to the others and consecutively to the sentences on aggravated murder. The
trial court did not impose or mention court costs during the oral hearing, though it did
agree to appoint appellate counsel. The trial court filed a judgment entry on the matter on
January 31, 1992. In the judgment entry, the trial court imposed costs but did not specify
the amount.
      {¶ 4} Breeze timely appealed his convictions to this court and raised five
assignments of error:
              First Assignment of Error

              PREJUDICIAL ERROR OCCURS WHEN THE TRIAL
              COURT ALLOWS SCIENTIFIC EVIDENCE, BASED UPON
              UNSUBSTANTIATED DATA, TO BE USED TO FORM THE
              BASIS OF AN EXPERT'S OPINION, CONTRA EVID. R. 703.

              Second Assignment of Error

              WHERE DNA EVIDENCE IS USED TO EXCLUDE, INSTEAD
              OF IDENTIFY, SAID TESTIMONY IS IRRELEVANT AND
              INADMISSIBLE AS A MATTER OF LAW.

              Third Assignment of Error

              UNDER EVID. R. 404(B), THE TRIAL COURT COMMITS
              PREJUDICIAL ERROR IN PERMITTING LENGTHY
              TESTIMONY OF OTHER ACTS OF THE ACCUSED, WHEN
              THE RULE SPECIFICALLY MANDATES LIMITED
              TESTIMONY.

              Fourth Assignment of Error

              THE CONSTITUTIONAL RIGHTS OF THE ACCUSED TO
              REMAIN SILENT AND TO A FAIR TRIAL WERE VIOLATED
                                                                                        3
No. 15AP-1027

              WHEN A POLICE OFFICER WAS PERMITTED TO TESTIFY
              THAT AN ACCUSED WANTED AN ATTORNEY AND DID
              NOT CONSENT TO THE SEARCH OF HIS RESIDENCE.

              Fifth Assignment of Error

              THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
              OF THE EVIDENCE.
(Internal quotation marks omitted.) State v. Breeze, 10th Dist. No. 92AP-258, 1-2
(Nov. 24, 1992). This court affirmed the convictions.
       {¶ 5} On January 14, 2000, Breeze filed a motion in which he argued that court
costs had not been properly imposed as part of his sentence, that he was indigent, and
that it is unjust to collect court costs from him. In addition, he argued that the statute
authorizing garnishing his prison job wages in order to satisfy costs had not been enacted
at the time of his conviction and that it was therefore an impermissible retroactive
application of the law to garnish his wages. Breeze filed additional motions arguing to
similar effect on the issue of costs on March 29, 2000, November 27, 2013, December 24,
2013, September 3, 2014, March 18, 2015, April 5, 2015, April 29, 2015, August 6, 2015,
and August 21, 2015. The trial court, in decisions on April 12, 2000, May 3, 2012,
December 19, 2013, April 6, 2015, and October 14, 2015, denied all of these motions.
Breeze appealed only the last of these decisions, filed on October 14, 2015.
II. ASSIGNMENTS OF ERROR
       {¶ 6} Breeze asserts three assignments of error for review:
              THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
              IMPOSING COURT COSTS WHEN THE DEFENDANT-
              APPELLANT WAS NOT SENTENCED TO PAY COURT
              COSTS IN ACCORDANCE WITH OHIO STATUTES §2947.23

              THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
              IN   TRYING     TO   APPLY     OHIO STATUTES
              RETROATIVELY[sic] IN VIOLATION OF THE UNITED
              STATES AND OHIO CONSTITUION[sic].

              THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
              BY NOT FOLLOWING STATUTORY PROVISIONS FOR
              COLLECTING COSTS AS STATED IN OHIO REVISED CODE
              §2949.14?
                                                                                          4
No. 15AP-1027

Because the issue of res judicata controls this case, we dispose of all three assignments of
error at once.
III. DISCUSSION
       {¶ 7} The Supreme Court of Ohio has explained:
                 The doctrine of res judicata involves both claim preclusion
                 (historically called estoppel by judgment in Ohio) and issue
                 preclusion (traditionally known as collateral estoppel). Grava
                 v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995 Ohio 331, 653
                 N.E.2d 226 (1995), citing Whitehead v. Gen. Tel. Co., 20 Ohio
                 St.2d 108, 254 N.E.2d 10 (1969) and Krahn v. Kinney, 43
                 Ohio St.3d 103, 107, 538 N.E.2d 1058, (1989). With regard to
                 claim preclusion, a final judgment or decree rendered on the
                 merits by a court of competent jurisdiction is a complete bar
                 to any subsequent action on the same claim between the same
                 parties or those in privity with them. Id., citing Norwood v.
                 McDonald, 142 Ohio St. 299, 52 N.E.2d 67 (1943), paragraph
                 one of the syllabus, and Whitehead, paragraph one of the
                 syllabus. Moreover, an existing final judgment or decree
                 between the parties is conclusive as to all claims that were or
                 might have been litigated in a first lawsuit. Id. at 382, citing
                 Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62,
                 558 N.E.2d 1178 (1990).
Brooks v. Kelly, 144 Ohio St.3d 322, 2015-Ohio-2805, ¶ 7; see also, e.g., Stromberg v. Bd.
of Edn., 64 Ohio St.2d 98, 100 (1980); State ex rel. Ohio Water Serv. Co. v. Mahoning
Valley Sanit. Dist., 169 Ohio St. 31, 34-35 (1959).
       {¶ 8} In contrast with claim preclusion:
                 The doctrine of issue preclusion, also known as collateral
                 estoppel, holds that a fact or a point that was actually and
                 directly at issue in a previous action, and was passed upon and
                 determined by a court of competent jurisdiction, may not be
                 drawn into question in a subsequent action between the same
                 parties or their privies, whether the cause of action in the two
                 actions be identical or different.
State ex rel. Stacy v. Batavia Local School Dist. Bd. of Edn., 97 Ohio St.3d 269, 2002-
Ohio-6322, ¶ 16. As is evident from the discussion of the Supreme Court, issue preclusion
is generally more limited than claim preclusion in at least one respect:
                 [T]he Ohio Supreme Court has held that "an absolute due
                 process prerequisite to the application of collateral estoppel
                 [issue preclusion] is that the party asserting the preclusion
                 must prove that the identical issue was actually litigated,
                                                                                          5
No. 15AP-1027

              directly determined, and essential to the judgment in the prior
              action."
State ex rel. Davis v. Pub. Emps Retirement Bd., 174 Ohio App.3d 135, 2007-Ohio-6594, ¶
31, quoting Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201 (1983). Or,
in other words, "Issue preclusion does not apply to other matters that might have been
litigated but were not." Id., quoting Taylor v. Monroe, 158 Ohio St. 266 (1952), paragraph
three of the syllabus.
       {¶ 9} However, in criminal cases, res judicata generally bars a defendant from
litigating claims in a proceeding subsequent to the direct appeal "if he or she raised or
could have raised the issue at the trial that resulted in that judgment of conviction or on
an appeal from that judgment." State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707,
¶ 92; see also State v. Szefcyk, 77 Ohio St.3d 93, 95-96 (1996). Stated differently, in
criminal cases res judicata may preclude issues, arguments, or positions that could have
been (even if they were not actually) litigated. See State v. Banks, 10th Dist. No. 15AP-
653, 2015-Ohio-5372, ¶ 13.
       {¶ 10} Breeze has repeatedly filed motions claiming that costs were not properly
assessed and that there is no proper authority for garnishing his prison job wages because
the statute permitting such a procedure was not enacted until 1994, after he was already
convicted, sentenced, and serving time. See 1994 Am.Sub.H.B. No. 571; R.C. 5120.133. In
fact, Breeze has filed motions on this theme on January 14, 2000, March 29, 2000,
November 27, 2013, December 24, 2013, September 3, 2014, March 18, 2015, April 5,
2015, April 29, 2015, August 6, 2015, and August 21, 2015. The trial court has denied
these motions in decisions issued on April 12, 2000, May 3, 2012, December 19, 2013,
April 6, 2015, and October 14, 2015. Yet, not until the most recent denial in October 2015
has Breeze appealed the issue.
       {¶ 11} Although the garnishment would not have started until after the enactment
of H.B. 571 in 1994 and thus could not have been appealed in Breeze's direct appeal in
1992, the questions on the propriety of assessing costs could have been litigated. The trial
court did not orally assess costs, but it did do so in its written judgment entry. The trial
court did not waive costs either in the oral hearing or in the judgment entry, yet it did
agree to appoint counsel (which it presumably would not have done had Breeze not been
indigent). In short, all the facts necessary to assess the possible impropriety of assessing
                                                                                             6
No. 15AP-1027

costs against Breeze appeared in the original trial court record and could have been (but
were not) litigated in Breeze's direct appeal. Breeze at 1-2 (listing Breeze's five
assignments of error regarding DNA evidence, manifest weight, other bad acts evidence,
and improper testimony regarding right to remain silent and request counsel).
       {¶ 12} The question of garnishing, though it could not have been raised in the 1992
direct appeal, has been litigated frequently by motions and could have been appealed after
the denial of the first such motion 16 years ago. Yet Breeze let that denial go unappealed.
Decisions on the merits that could have been, but were not, appealed, become res
judicata. Plassman v. Ohio Adult Parole Auth., 141 Ohio St.3d 14, 2014-Ohio-4033, ¶ 2, 5.
While some sentencing issues are not subject to the application of res judicata, the
imposition of costs is not such an issue. Compare State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, ¶ 27, 30 (holding that a sentence is void in part and subject to correction
at any time irrespective of the principles of res judicata or law of the case doctrine, where
an offender is not properly required to be subject to a period of post-release control) with
State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 1, 19-21 (holding that the void
sentence exception in Fischer does not apply to the improper imposition of costs).
       {¶ 13} The issues Breeze attempts to appeal have been fully litigated at the trial
level and could have been, but were not, appealed and litigated at the appellate level. Res
judicata therefore controls the review of the October 14, 2015 decision that Breeze now
appeals. The trial court did not err in following its prior decisions (regardless of whether
or not its prior decisions were erroneous). "[T]he doctrine of res judicata would be
abrogated if every decision could be relitigated on the ground that it is erroneous, and
there would be no stability of decision, or no end to litigation." La Barbera v. Batsch, 10
Ohio St.2d 106, 110 (1967). While there can be tension between the principle in La
Barbera and the equally well-regarded principle that "the doctrine of res judicata is to be
applied in particular situations as fairness and justice require, and that it is not to be
applied so rigidly as to defeat the ends of justice or so as to work an injustice," we do not
find injustice here. Goodson at 202. The practical effect of the trial court's decision is that
Breeze, a convicted multiple-murderer who is unlikely ever to be released from prison, is
required to give up some of his prison job pay to reimburse Ohio taxpayers for the costs
incurred in proving his guilt. There is nothing unjust in this situation. Breeze had an
                                                                                           7
No. 15AP-1027

opportunity to litigate the issues of how costs should have been imposed and collected,
and he had an opportunity to appeal the trial court's decision on his first motion as to
costs if he had desired to do so. He did not appeal, and we will not now brush aside the
principle of res judicata to reach back 16 years in an attempt to reevaluate an issue settled
long ago. We overrule all three of Breeze's assignments of error.
IV. CONCLUSION
       {¶ 14} Because Breeze could have but did not appeal the issues presented in this
appeal on prior occasions, the matters he seeks to appeal are res judicata and shall not
now be altered. We therefore overrule each of the assignments of error and affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                       Judgment affirmed.
                            TYACK and HORTON, JJ., concur.
