[Cite as State v. Draughon, 2019-Ohio-1461.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 18AP-709
v.                                               :                (C.P.C. No. 97CR-1733)

Mickey L. Draughon,                              :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :



                                           D E C I S I O N

                                     Rendered on April 18, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Pritchard, for appellee.

                 On brief: Mickey L. Draughon, pro se.

                  APPEAL from the Franklin County Court of Common Pleas

HANDWORK, J.

         {¶ 1} Defendant-appellant, Mickey L. Draughon, pro se, appeals from the
decision of the Franklin County Court of Common Pleas denying his "Motion to Vacate
and Set Aside Sentence." For the following reasons, we affirm the judgment of the trial
court.
I. Background
         {¶ 2} On March 28, 1997, appellant was indicted by the Franklin County Grand
Jury on one count of aggravated burglary, in violation of R.C. 2911.11, one count of
aggravated robbery, in violation of R.C. 2911.01, two counts of robbery, in violation of R.C.
2911.02, one count of rape, in violation of R.C. 2907.02, and one count of kidnapping, in
violation of R.C. 2905.01.          The aggravated burglary, aggravated robbery, rape and
No. 18AP-709                                                                              2


kidnapping counts included repeat violent offender specifications and the rape count also
included a sexually violent predator specification.
       {¶ 3} Appellant waived his right to a jury trial on all of the specifications and the
trial court conducted a jury trial on the charges. The trial court granted appellant's
Crim.R. 29 motion to dismiss the aggravated robbery charge. The jury found appellant
guilty of the remaining charges.        The trial court found appellant guilty of the
specifications.   "The trial court sentenced appellant as follows:      ten years for the
aggravated burglary; five years for the two counts of robbery (the two robberies merged
for purposes of sentencing); and ten years to life for the rape conviction and the
kidnapping conviction (the rape and kidnapping convictions merged for purposes of
sentencing). The trial court ordered the sentences to run concurrent with each other, with
an additional ten years because appellant was a repeat violent offender."          State v.
Draughon, 10th Dist. No. 97APA11-1536 (Sept. 1, 1998).
       {¶ 4} In his direct appeal, this court affirmed the convictions. Id. Subsequently,
this court denied appellant's App.R. 26(B) application for reopening. State v. Draughon,
10th Dist. No. 97APA11-1536 (Dec. 31, 1998) (memorandum decision). The Supreme
Court of Ohio denied appellant's motion to file a delayed appeal. State v. Draughon, 84
Ohio St.3d 1473 (1999).      In October 2000, appellant filed an untimely motion for
postconviction relief, which the trial court denied in November 2000. State v. Draughon,
Franklin C.P. No. 97CR03-1733 (Nov. 16, 2000).
       {¶ 5} On January 13, 2011, appellant filed a "Motion to Vacate and Discharge,"
claiming that his original sentence was void, was not a final, appealable order, and failed
to comply with Crim.R. 32(C).         The trial court denied appellant's motion.        On
September 2, 2011, appellant filed a "Motion to Vacate Sentence," asserting again that his
original sentence was void, was not a final, appealable order, and failed to comply with
Crim.R. 32(C). The trial court denied appellant's motion. This court consolidated the
appeals from these two motions and affirmed the trial court in both appeals. See State v.
Draughon, 10th Dist. No. 11AP-703, 2012-Ohio-1917.
       {¶ 6} On January 22, 2013, appellant filed a "Motion for Resentence." Appellant
argued that the trial court imposed an enhanced sentence on the rape count without
properly securing a qualifying prior conviction to support the attached sexually violent
No. 18AP-709                                                                              3


predator specification.   The trial court denied the motion.         On appeal, this court
determined that appellant's arguments had been previously litigated and decided in
Draughon, 2012-Ohio-1917. Having already issued a valid, final judgment on the merits
of the issues appellant raised, this court found appellant's arguments were barred by the
doctrine of res judicata and affirmed the judgment of the trial court.        See State v.
Draughon, 10th Dist. No. 13AP-345, 2014-Ohio-1460.
       {¶ 7} Appellant filed a motion to waive or suspend costs, arguing that the trial
court, at his 1997 sentencing, did not properly deal with the issue of court costs and that
as a result his sentence was contrary to law and, therefore, he should be resentenced. He
also requested that the trial court waive court costs. The trial court suspended all costs.
However, appellant appealed and this court found that the argument appellant presents
would not render the trial court's judgment void and since the court costs were
suspended, any possible error was of no consequence because appellant suffered no harm.
This court affirmed the judgment of the trial court. See State v. Draughon, 10th Dist. No.
17AP-149, 2017-Ohio-7741.
       {¶ 8} On June 18, 2018, appellant filed the present "Motion to Vacate and Set
Aside Sentence." In the motion, appellant argued that he must be resentenced because
his sentence was contrary to law in that he could not be convicted of the sexually violent
predator specification. The trial court denied appellant's motion.
II. Assignments of Error
       {¶ 9} Appellant filed a notice of appeal and raised the following assignment of
error for our review:
              The [trial] court commits prejudicial error when it never
              adjudicates the defendant as a Sexual Predator as required
              by Ohio Revised Code 2971.02.

III. Standard of Review
       {¶ 10} In Draughon, 2014-Ohio-1460, ¶ 8-9, we stated that: "Where a criminal
defendant files a 'motion for sentencing' arguing a denial of rights and seeking to void a
judgment and vacate sentencing subsequent to his or her direct appeal, the motion will be
treated as a petition for postconviction relief. State v. Bankston, 10th Dist. No. 13AP-250,
2013-Ohio-4346, ¶ 7, citing State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586."
No. 18AP-709                                                                             4


Thus, we construe appellant's "Motion to Vacate and Set Aside Sentence" as a petition for
postconviction relief.
       {¶ 11} The appropriate standard for reviewing a trial court's decision which
dismissed a petition for postconviction relief without an evidentiary hearing, involves a
mixed question of law and fact. State v. Tucker, 10th Dist. No. 12AP-158, 2012-Ohio-
3477, ¶ 9. This court applies a manifest weight standard in reviewing a trial court's
findings on factual issues underlying the substantive grounds for relief, but we review the
trial court's legal conclusions de novo. Id.
IV. Discussion
       {¶ 12} In his "Motion to Vacate and Set Aside Sentence," appellant argued that he
must be resentenced because he could not be convicted of the sexually violent predator
specification because the trial court did not properly determine that he was a sexually
violent predator.
       {¶ 13} Appellee argues that this court has already rejected appellant's arguments
and thus, his assignment of error is barred by res judicata. "Under the doctrine of res
judicata, a valid, final judgment rendered upon the merits bars all subsequent actions
based upon any claim arising out of the transaction or occurrence that was the subject
matter of the previous action." State v. Wooden, 10th Dist. No. 02AP-473, 2002-Ohio-
7363, ¶ 19. The doctrine of "[r]es judicata prevents repeated attacks on a final judgment
and applies to issues that were or might have been previously litigated."         State v.
Sappington, 10th Dist. No. 09AP-988, 2010-Ohio-1783, ¶ 10.
       {¶ 14} This court rejected appellant's argument in our 2012 decision, Draughon,
2012-Ohio-1917. In that case, we held as follows:
              In his second assignment of error, appellant contends his
              original sentence was void because the trial court
              erroneously imposed a sentence of ten years to life on the
              rape offense. Appellant specifically claims that the trial court
              lacked the statutory authority to enhance appellant's
              sentence on the rape offense because: (1) his 1984 rape
              conviction could not support the sexually violent predator
              specification, as it occurred prior to the enactment of R.C.
              2971.01, and (2) the trial court was precluded by the
              Supreme Court of Ohio's decision in State v. Smith, 104 Ohio
              St.3d 106, 2004-Ohio-6238, 818 N.E.2d 283 from using the
No. 18AP-709                                                                   5


           underlying rape conviction to support the sexually violent
           predator specification.

           As outlined above, the rape charge in the indictment carried
           a sexually violent predator specification pursuant to R.C.
           2941.148. After the jury found appellant guilty of rape, the
           trial court found appellant to be a sexually violent predator
           as charged in the indictment. Thus, the trial court, pursuant
           to R.C. 2971.03(A)(3), enhanced appellant's sentence for the
           rape, imposing a prison term of ten years to life, instead of a
           definite prison term of three to ten years prescribed for rape.
           See R.C. 2929.14(A)(1).

           R.C. 2971.03(A) mandates an enhanced sentence upon a
           guilty verdict or plea on a rape offense if the offender also "is
           convicted of or pleads guilty to a sexually violent predator
           specification that was included in the count of the indictment
           * * * charging that offense." In 1997, when appellant was
           sentenced, R.C. 2971.01(H)(1) defined a "sexually violent
           predator" as "a person who has been convicted of or pleaded
           guilty to committing, on or after January 1, 1997, a sexually
           violent offense and is likely to engage in the future in one or
           more sexually violent offenses." "Rape is a 'sexually violent
           offense.' " State v. Haynes, 10th Dist. No. 01AP-430, 2002-
           Ohio-4389, citing R.C. 2971.01(G) and (L). Thus, appellant's
           1984 rape conviction could not be used to demonstrate that
           appellant had been convicted of a sexually violent offense for
           purposes of proving the sexually violent predator
           specification because the conviction predated the January 1,
           1997 cutoff date in R.C. 2971.01(H)(1).

           However, at the time of appellant's conviction and
           sentencing in 1997, the trial court was not precluded from
           using the underlying rape conviction to satisfy the sexual
           predator specification. Ohio courts had not uniformly
           interpreted R.C. 2971.01(H)(1) to require a prior conviction
           to satisfy the specification. Indeed, this court construed the
           statute to permit satisfaction of a sexually violent predator
           specification through contemporaneous conviction of a
           sexually violent offense. For example, in Haynes, this court
           upheld a trial court's finding that the defendant was a
           sexually violent predator based upon conduct alleged in the
           indictment that contained the sexually violent predator
           specification. Id. at ¶ 82-96. We concluded as such even
           though the defendant had no "prior history of conviction for
           sexually oriented offenses." Id. at ¶ 90. Under the
No. 18AP-709                                                                           6


                  construction employed in Haynes, the trial court could have
                  adjudged appellant to be a sexually violent predator because
                  he was convicted of committing rape, a sexually violent
                  offense, after January 1, 1997.

                  In December 2004, the Supreme Court of Ohio
                  decided Smith, which held that a "[c]onviction of a sexually
                  violent offense cannot support the specification that the
                  offender is a sexually violent predator as defined in R.C.
                  2971.01(H)(1) if the conduct leading to the conviction and
                  the sexually violent predator specification are charged in the
                  same indictment." Id. at syllabus. The court based its
                  holding on its interpretation of R.C. 2971.01(H)(1) to require
                  that a sexually violent predator specification be supported by
                  a sexually violent offense "conviction * * * that [had] existed
                  prior to the * * * indictment" charging the specification. Id.
                  at ¶ 27.

                  Appellant urges that Smith applies to his case and, therefore,
                  the trial court erroneously found him guilty of the
                  specification because the underlying rape conviction did not
                  predate the indictment. However, this court has held
                  that Smith does not apply retroactively to closed cases. State
                  v. Haynes, 10th Dist. No. 01AP-430 (Jan. 26, 2006)
                  (memorandum decision). Accordingly, at the time appellant
                  was convicted and sentenced, the trial court properly could
                  find appellant guilty of the sexually violent predator
                  specification based upon conduct alleged in the indictment.

                  Because the trial court properly imposed a sentence of ten
                  years to life on his rape conviction, the trial court did not err
                  in denying his motion to vacate and discharge on this issue.
                  The second assignment of error is overruled.

Id. at ¶ 19-25.
       {¶ 15} Appellant again raised this issue in a subsequent motion and an appeal from
the trial court's denial of that motion. Draughon, 2014-Ohio-1460. Appellant claimed
that the trial court was precluded by State v. Smith, 104 Ohio St.3d 106, 2004-Ohio-6238,
from using the underlying rape conviction to support the sexually violent predator
specification. Because this court has held that Smith does not apply retroactively to
closed cases and because this court found "the trial court properly could find appellant
guilty of the sexually violent predator specification based upon conduct alleged in the
No. 18AP-709                                                                                 7


indictment," Draughon, 2012-Ohio-1917, at ¶ 24, this court found appellant's arguments
were barred by res judicata. Draughon, 2014-Ohio-1460.
       {¶ 16} Pursuant to his motion, appellant presents nearly identical arguments as
those he has previously raised multiple times. Thus, because we have already issued a
valid, final judgment on the merits of this issue, consideration of appellant's arguments
are barred by the doctrine of res judicata.
       {¶ 17} In his brief to this court, appellant attempts to also argue that the trial court
never adjudicated him a sexual predator. Appellee argues that the trial court conducted a
hearing on October 9, 1997 and found appellant to be a sexual predator.
       {¶ 18} The indictment contained a rape count with a sexually violent predator
specification. Appellant waived his right to a jury trial in writing on all the specifications.
The trial court found him guilty. The trial court conducted a hearing on October 9, 1997
and found appellant guilty of the specifications and adjudicated him a sexual predator.
(See Dec. 31, 1999 Tr. at 97-103.) The trial court filed an entry to that effect on October 16,
1997. The trial court found, "For the reasons stated on the record at the conclusion of that
hearing, the Court determines by clear and convincing evidence that the defendant,
Mickey Draughon is a sexual predator." (Oct. 16, 1997 Entry.) Thus, the trial court did
adjudicate appellant a sexual predator despite appellant's arguments to the contrary.
Appellant's assignment of error is overruled.
V. Conclusion
       {¶ 19} For the foregoing reasons, appellant's assignment of error is overruled.
Appellant's arguments raised in his motion are barred by res judicata and the trial court
did adjudicate appellant a sexual predator. The judgment of the Franklin County Court of
Common Pleas is affirmed.
                                                                         Judgment affirmed.
                      BRUNNER and BEATTY BLUNT, JJ. , concur.

              HANDWORK, J., retired, of the Sixth Appellate District,
              assigned to active duty under the authority of the Ohio
              Constitution, Article IV, Section 6(C).
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