[Cite as State v. Hopson, 2018-Ohio-4552.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
 -vs-                                          :
                                               :   Case No. 2018CA00109
                                               :
 PEYTON JOHN WESLEY HOPSON                     :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Stark County Court of
                                                   Common Pleas, Case No. 2013CR1982



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            November 5, 2018




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 JOHN D. FERRERO                                   PEYTON HOPSON, PRO SE
 STARK COUNTY PROSECUTOR                           Inmate # A662-444
                                                   Belmont Correctional Institution
 RONALD MARK CALDWELL                              P.O. Box 540
 110 Central Plaza South, Suite 510                St. Clairsville, OH 43950-0540
 Canton, OH 44702-1413
Stark County, Case No. 2018CA00109                                                         2

Delaney, J.

       {¶1} Defendant-Appellant Peyton John Wesley Hopson appeals the July 10,

2018 judgment entry of the Stark County Court of Common Pleas. Plaintiff-Appellee is

the State of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On February 3, 2014, the Stark County Grand Jury indicted Defendant-

Appellant Peyton John Wesley Hopson on five counts. Count One of the Indictment

charged Hopson with felonious assault, in violation of R.C. 2903.11(A)(1) and/or (A)(2),

with a repeat violent offender specification, a felony of the second degree. Count Two

charged Hopson with rape, in violation of R.C.2907.02(A)(2), with repeat violent offender

and sexually violent predator specifications, a felony of the first degree. Count Three

charged Hopson with kidnapping, in violation of R.C. 2905.01(A)(2) and/or (3) and/or (4)

and/or (B)(1) and/or (2), with repeat violent offender, sexually violent predator, and sexual

motivation specifications, a felony of the first degree. Count Four charged Hopson with

felonious assault, in violation of R.C. 2903.11(A)(1) and/or (A)(2), with a repeat violent

offender specification, a felony of the second degree. Count Five charged Hopson with

notice of change of address; registration of new address, in violation of R.C.

2950.05(A)(F)(1) and R.C. 2950.99(A), a felony of the third degree.

       {¶3} Relevant to this appeal, the matter proceeded to a jury trial on Count One,

felonious assault in violation of R.C. 2903.11(A)(1) and/or (A)(2), with a repeat violent

offender specification, a felony of the second degree. The jury found Hopson guilty of

felonious assault pursuant to R.C. 2903.11(A)(1) and/or (A)(2) and the trial court found

Hopson guilty of the accompanying repeat violent offender specification. The trial court
Stark County, Case No. 2018CA00109                                                         3


sentenced Hopson to an aggregate prison term of 14 years: eight years for the felonious

assault and six years for the repeat violent offender specification.

       {¶4} Hopson appealed his convictions and sentences in State v. Hopson, 5th

Dist. Stark No. 2014CA00163, 2015-Ohio-2848. He raised two assignments of error: (1)

the trial court erred in preventing Hopson from representing himself at trial and (2) his

convictions were against the sufficiency and manifest weight of the evidence. We

overruled both assignments of error and affirmed Hopson’s convictions and sentences.

       {¶5} On June 22, 2018, Hopson filed a pro se motion for resentencing. He

argued his sentence for the repeat violent offender specification was void because the

trial court erred when it made independent judicial findings of seriousness of the crime,

serious physical harm, and recidivism. The trial court denied the motion on July 10, 2018.

       {¶6} It is from this judgment entry Hopson now appeals.

                               ASSIGNMENT OF ERROR

       {¶7} Hopson raises one Assignment of Error:

       {¶8} “THE TRIAL COURT ERRED WHEN MAKING INDEPENDENT JUDICIAL

FINDINGS OF SERIOUSNESS OF THE CRIME, SERIOUS PHYSICAL HARM AND

RECIDIVISM UNDER R.V.O. SPECIFICATION (JULY 23, 2014 TR. AT 11-14).”

                                        ANALYSIS

       {¶9} Hopson contends in his sole Assignment of Error that the trial court erred in

sentencing him to an additional six years incarceration on the repeat violent offender

specification. We disagree.

       {¶10} We first find that Hopson’s argument is barred by the doctrine of res

judicata. Under the doctrine of res judicata, a final judgment of conviction bars a convicted
Stark County, Case No. 2018CA00109                                                        4


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. Szefcyk, 77 Ohio

St.3d 93, 671 N.E.2d 233 (1996), syllabus, approving and following State v. Perry, 10

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

       {¶11} The record in this case shows that Hopson did not object during trial to the

trial court’s determination as to the repeat violent offender specification. Hopson also did

not raise the issue in his direct appeal.

       {¶12} Assuming arguendo the matter is not barred by the doctrine of res judicata,

we find Hopson’s argument to be meritless. The indictment contained a repeat violent

offender specification pursuant to R.C. 2941.149. The specification alleged Hopson had

been previously convicted of or plead guilty to Kidnapping and/or Attempted Rape, in

Mahoning County Common Pleas Court (Case No. 1990 CR 00727), on or about

February 20, 1991. The jury found Hopson guilty of felonious assault, a second-degree

felony in violation of R.C. 2903.11(A)(1) and/or (A)(2). R.C. 2903.11(A)(1) and (A)(2) state

as follows:

       (A) No person shall knowingly do either of the following:

       (1) Cause serious physical harm to another or to another's unborn;

       (2) Cause or attempt to cause physical harm to another or to another's

       unborn by means of a deadly weapon or dangerous ordnance.
Stark County, Case No. 2018CA00109                                                          5


       {¶13} The trial court classified Hopson as a repeat violent offender. The Ohio

Revised Code defines a “repeat violent offender” as “a person about whom both of the

following apply:

       (1) The person is being sentenced for committing or for complicity in

       committing any of the following:

       (a) Aggravated murder, murder, any felony of the first or second degree that

       is an offense of violence, or an attempt to commit any of these offenses if

       the attempt is a felony of the first or second degree;

       ***

       (2) The person previously was convicted of or pleaded guilty to an offense

       described in division (CC)(1)(a) or (b) of this section.

R.C. 2929.01(CC).

       {¶14} R.C. 2929.14 governs felony sentencing and prison terms. The trial court

found Hopson to be a repeat violent offender and sentenced Hopson pursuant to R.C.

2929.14(B)(2)(a):

       (2)(a) If division (B)(2)(b) of this section does not apply, the court may

       impose on an offender, in addition to the longest prison term authorized or

       required for the offense, an additional definite prison term of one, two, three,

       four, five, six, seven, eight, nine, or ten years if all of the following criteria

       are met:

       (i) The offender is convicted of or pleads guilty to a specification of the type

       described in section 2941.149 of the Revised Code that the offender is a

       repeat violent offender.
Stark County, Case No. 2018CA00109                                                        6


      (ii) The offense of which the offender currently is convicted or to which the

      offender currently pleads guilty is aggravated murder and the court does

      not impose a sentence of death or life imprisonment without parole, murder,

      terrorism and the court does not impose a sentence of life imprisonment

      without parole, any felony of the first degree that is an offense of violence

      and the court does not impose a sentence of life imprisonment without

      parole, or any felony of the second degree that is an offense of violence and

      the trier of fact finds that the offense involved an attempt to cause or a threat

      to cause serious physical harm to a person or resulted in serious physical

      harm to a person. (Emphasis added.)

      (iii) The court imposes the longest prison term for the offense that is not life

      imprisonment without parole.

      (iv) The court finds that the prison terms imposed pursuant to division

      (B)(2)(a)(iii) of this section * * * are inadequate to punish the offender and

      protect the public from future crime, because the applicable factors under

      section 2929.12 of the Revised Code indicating a greater likelihood of

      recidivism outweigh the applicable factors under that section indicating a

      lesser likelihood of recidivism.

      (v) The court finds that the prison terms imposed pursuant to division

      (B)(2)(a)(iii) of this section * * * are demeaning to the seriousness of the

      offense, because one or more of the factors under section 2929.12 of the

      Revised Code indicating that the offender's conduct is more serious than

      conduct normally constituting the offense are present, and they outweigh
Stark County, Case No. 2018CA00109                                                         7


       the applicable factors under that section indicating that the offender's

       conduct is less serious than conduct normally constituting the offense.

       {¶15} Hopson contends the trial court’s sentence pursuant to the repeat violent

offender classification was contrary to law. He states the trial court engaged in

impermissible    fact-finding   when     determining    whether   the   elements   of    R.C.

2929.14(B)(2)(a)(ii) were met.

       {¶16} We addressed the element of “serious physical harm” in State v. Bishop,

5th Dist. Stark No. 2014CA00190, 2015-Ohio-3023. In that case, the defendant was

convicted by a jury of felonious assault in violation of R.C. 2903.11(A)(2) and the trial

court found the defendant guilty of the repeat violent offender specification. Because the

defendant was charged and convicted with R.C. 2903.11(A)(2), the issue of whether the

defendant inflicted serious physical harm on the victim was not submitted to the jury. Id.

at ¶ 18. This Court was asked to determine whether the “trier of fact” for purposes of

determining whether the offense involved serious physical harm under R.C.

2929.14(B)(2)(a)(ii) was the jury or the trial court. Id.

       {¶17} We held:

       In State v. Smith, 8th Dist. Cuyahoga No. 82710, 2004–Ohio–3479, the

       court of appeals held that Ohio's statutory scheme for RVO specifications

       for second-degree felony offenses requires the trial court make a finding of

       guilt relative to the RVO specification, including the fact-finding relative to

       the “serious physical harm” component of R.C. 2929.14(B)(2)(a)(ii) at issue

       in the instant case. However, this holding was overturned in a federal

       habeas corpus proceeding, in which the federal district court held that the
Stark County, Case No. 2018CA00109                                                    8


      statutory requirement that the trial court, rather than the jury, make the

      “serious physical harm” finding violates the Sixth Amendment:

             The holding in Apprendi established that ‘[o]ther than the fact

             of a prior conviction, any fact that increases the penalty for a

             crime beyond the prescribed statutory maximum must be

             submitted to a jury, and proved beyond a reasonable doubt.’

             530 U.S. at 489, 120 S.Ct. 2348. Mr. Smith received the

             statutory maximum of eight years for felonious assault. That

             the trial court then resorted to judicial fact-finding to establish

             a separate additional sentence of nine years predicated on

             the Petitioner's repeat offender status and the assignment of

             the eight year statutory maximum for felonious assault, clearly

             marks the additional sentence as unconstitutional under

             Apprendi. Accordingly, Mr. Smith's independent nine-year

             sentence is contrary to clearly established federal law and he

             is entitled to habeas relief on the merits.

      Smith v. Petkovich, 562 F.Supp.2d 912, 922 (N.D.Ohio 2008).

      Based on the decision of the federal district court in Smith, the trial court

      erred in finding that appellant's crime resulted in serious physical harm

      without submitting the issue to the jury.

State v. Bishop, 5th Dist. Stark No. 2014CA00190, 2015-Ohio-3023, 2015 WL 4554662,

¶¶ 19-21
Stark County, Case No. 2018CA00109                                                     9


      {¶18} The procedural scenario in the present case can be differentiated from that

in State v. Bishop. In this case, Hopson was charged and convicted of felonious assault

in violation of R.C. 2903.11(A)(1) and/or (A)(2). Subsection (A)(1) defines felonious

assault as causing serious physical harm and the jury found Hopson inflicted serious

physical harm on the victim. Accordingly, in this case, the trier of fact found that the

offense involved an attempt to cause or a threat to cause serious physical harm to a

person, or resulted in serious physical harm to a person.

      {¶19} Upon review of the record, we conclude the trial court further correctly

considered the appropriate recidivism and seriousness factors, made the required

findings, gave the necessary reasons for its findings, and properly applied the statutory

guidelines before sentencing Hopson to an additional six years on the repeat violent

offender specification. Hopson was properly classified as a repeat violent offender and

the trial court sentenced Hopson in accordance with the law. Thus, the trial court’s

judgment entry to overrule Hopson’s motion for resentencing is affirmed.

      {¶20} Hopson’s sole Assignment of Error is overruled.
Stark County, Case No. 2018CA00109                                                 10


                                   CONCLUSION

       {¶21} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.
