[Cite as State v. Burnside, 2010-Ohio-4183.]



                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                  )   CASE NO. 09 MA 179
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )   OPINION AND
                                               )   JUDGMENT ENTRY
JOHN O. BURNSIDE                               )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                          Appellant’s Motion for Reconsideration
                                                   Case No. 1984 CR 652

JUDGMENT:                                          Overruled.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           John O. Burnside, Pro se
                                                   #17973-004
                                                   U.S.P. Allenwood
                                                   U.S. Penitentiary
                                                   P.O. Box 3000
                                                   White Deer, PA 17887-3000

JUDGES:

Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                   Dated: September 1, 2010
PER CURIAM.
                                                                                      -2-



         {¶1}   Appellant John Burnside has filed a motion for reconsideration of our

Opinion affirming the trial court’s decision to overrule his second postsentence

attempt to vacate his guilty plea. State v. Burnside, 7th Dist. No. 09 MA 179, 2010-

Ohio-3158. Appellant pleaded guilty to felonious assault in 1984. He was sentenced

to an indeterminate sentence of four to fifteen years in prison and was paroled in

1988. Thirteen years later he attempted to vacate his guilty plea, and failed. State v.

Burnside, 7th Dist. Nos. 01-CA-215, 01-CA-216, 2002-Ohio-5216.            On August 5,

2009, he filed a motion to withdraw his plea, which was rejected by the trial court.

We affirmed the trial court’s judgment on the basis of res judicata and waiver. We

concluded that Appellant could have raised any issues regarding the plea in his prior

attempt to vacate it, and that the errors he raised regarding the signatures on the

indictment were waived by entering into a guilty plea to the felonious assault charge.

Appellant now contends that we should not have relied on res judicata as a basis for

affirming the trial court’s judgment because this argument was not asserted by the

state in the trial court proceedings, and that he did not waive any errors regarding the

indictment because the errors related to the subject matter jurisdiction of the trial

court.

         {¶2}   Appellant’s pro se motion does not indicate his basis for filing a motion

for reconsideration, but we must presume the motion was filed pursuant to App.R.

26(A). “The test generally applied upon the filing of a motion for reconsideration in

the court of appeals is whether the motion calls to the attention of the court an

obvious error in its decision, or raises an issue for consideration that was either not
                                                                                         -3-

considered at all or was not fully considered by the court when it should have been.”

Columbus v. Hodge (1987), 37 Ohio App.3d 68, 523 N.E.2d 515, paragraph one of

the syllabus. “An application for reconsideration may not be filed simply on the basis

that a party disagrees with the prior appellate court decision.” Hampton v. Ahmed,

7th Dist. No. 02 BE 66, 2005-Ohio-1766, ¶16, citing State v. Owens (1996), 112 Ohio

App.3d 334, 336, 678 N.E.2d 956.

       {¶3}   Appellant’s first argument is that we should not have discussed the

doctrine of res judicata because it was not raised by the state as a defense at the trial

court level in response to his motion to withdraw the guilty plea. In the civil law

context, res judicata is the rule that a final judgment rendered by a court of competent

jurisdiction on the merits is conclusive as to the rights of the parties and acts as an

absolute bar to a subsequent action involving the same claim. Holzemer v. Urbanski

(1999), 86 Ohio St.3d 129, 132, 712 N.E.2d 713. In civil proceedings, the doctrine of

res judicata is an affirmative defense, and by rule, is raised in responsive pleadings

at the trial court level of the proceedings.      See Civ.R. 8.     This case, though, is

criminal in nature, not civil. “In the criminal law context, [the Ohio Supreme Court]

has held that issues that could have been raised on direct appeal and were not are

res judicata and not subject to review in subsequent proceedings.” State v. Davis,

119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶6. This Court and other

appellate courts have raised the doctrine of res judicata when reviewing

postconviction and postsentence motions and rulings, particularly in response to

repeated pro se filings by a defendant in which it is difficult, if not impossible, to fully

decipher the nature of the arguments being presented. State v. Madden, 10th Dist.
                                                                                   -4-

No. 08AP-172, 2008-Ohio-2653; State v. Davis, 7th Dist. No. 08 MA 174, 2009-Ohio-

4634; State v. Barcus, 5th Dist. No. 09 CA 51, 2009-Ohio-3388. We also note that

the state did not raise the matter of res judicata earlier because the trial court

overruled Appellant’s motion to withdraw before the state had an opportunity to

address its merits. In this context, it was entirely appropriate for us to discuss and

rely on the doctrine of res judicata in rendering our Opinion.

       {¶4}   Appellant’s second argument is that we mischaracterized some of the

statements he made in his direct appeal regarding the validity of the indictment. He

contends that we did not correctly interpret what he was arguing in his direct appeal.

Appellant’s motion for reconsideration repeats the argument from his direct appeal

that the indictment was improper because it did not have a second page stating that

it was a “true bill” and did not contain the proper signatures to indicate it was

approved by the grand jury.        A review of the matter reveals that we did not

mischaracterize Appellant’s argument and it remains clear that he waived this

argument when he entered his guilty plea.         Appellant simply disagrees with our

decision, and this is not a basis for reconsideration.

       {¶5}   Based on the foregoing, Appellant's motion for reconsideration lacks

merit and is overruled.

Waite, J., concurs.

Vukovich, P.J., concurs.

DeGenaro, J., concurs.
