[Cite as State v. Latham, 2012-Ohio-4576.]


                                       COURT OF APPEALS
                                   GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Julie A. Edwards, J.
-vs-
                                                 Case No. 12CA00004
MAURICE LATHAM

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                       HB 86


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        September 27, 2012


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


DANIEL G. PADDEN                              MAURICE D. LATHAM
Guernsey County Prosecuting Attorney          D.R.C. No. 567-385
139 West 8th Street                           Southeastern Correctional Inst.
P.O. Box 640                                  5900 B.I.S. Road
Cambridge, Ohio 43725-0640                    Lancaster, Ohio 43130
Guernsey County, Case No. 12CA00004                                                    2

Hoffman, P.J.


       {¶1}   Appellant, Maurice Latham, appeals the trial court’s denial of his motion

for resentencing based upon H.B. 86.

       {¶2}   On November 6, 2007, Appellant entered pleas of guilty to a Bill of

Information containing one count of Possession of Powder Cocaine and one count of

Possession of Crack Cocaine.       Further, Appellant pled guilty to the accompanying

specifications resulting in the forfeiture of $66,250.00 in cash. Appellant was sentenced

to a term of five years in prison on each count of Possession of Cocaine ordered served

consecutive to one another for a total term of ten years in prison.

       {¶3}   The sentencing reforms contained in H.B. No. 86 eliminated any

distinction between crack cocaine and powder cocaine, and lowered several cocaine

thresholds. The effective date of the reforms was September 30, 2011. Appellant was

sentenced on December 14, 2007, prior to the effective date of the reforms.

       {¶4}   Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating the within appeal was wholly frivolous and setting forth one proposed

Assignments of Error. Appellant filed a pro se brief raising four proposed Assignments

of Error:

                                                I.

       {¶5}   “APPELLANT MUST BE RESENTENCED BECAUSE HOUSE BILL 86

ELIMINATED THE DIFFERENTCE (SIC) IN SENTENCING FOR POSSESSIN (SIC)

OF COCAINE AND CRACK-BASED COCAINE.”
Guernsey County, Case No. 12CA00004                                                       3


                                                II.

       {¶6}   “TRIAL COURTS ERRED BY DENYING THE ABPELLANTS (SIC)

MOTION VIA DOUBLED (SIC) JEOPARDY UNDER THE CURRENT SENATE BILL 86

PROVISIONS, CONCERNING THE CRACK COCAIN SENTENCING.”

                                                III.

       {¶7}   “TRIAL    COURTS       ABUSED       THEIR    DISCRETION       WHEN       NOT

REVIEWING THE CONSECUTIVE SENTENCING ON OFFENSES UNDER THE

SAME SUBSECTION AND OHIO REV. CODE 2925.11(C)(4).”

                                                IV.

       {¶8}   “TRIAL COURTS FAILED TO PROPERLY CONSIDER THE GRANTING

OF OHIO REV. CODE 2929.51 (SENTENCE MODIFICATION) VIA SENATE BILL 86.”

                                                V.

       {¶9}   “TRIAL COURTS LACKED SUFFICIENT EVIDENCE TO CONVICT THE

DEFENDANT OF A SECOND DEGREE POSSESSION OF CRACK COCAINE VIA

OHIO REV. CODE 2925.11(A) LOCKED TRUNK.”

       {¶10} In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he [or she] should so advise the court and request permission to withdraw. Id. at

744. Counsel must accompany his [or her] request with a brief identifying anything in

the record that could arguably support his [or her] client’s appeal. Id. Counsel also

must: (1) furnish his [or her] client with a copy of the brief and request to withdraw; and,

(2) allow his [or her] client sufficient time to raise any matters the client chooses. Id.

Once the defendant’s counsel satisfies these requirements, the appellate court must
Guernsey County, Case No. 12CA00004                                                      4


fully examine the proceedings below to determine if any arguably meritorious issues

exist. If the appellate court also determines the appeal is wholly frivolous, it may grant

counsel’s request to withdraw and dismiss the appeal without violating constitutional

requirements, or may proceed to a decision on the merits if state law so requires. Id.

         {¶11} Counsel in this matter has followed the procedure in Anders v. California

(1967), 386 U.S. 738. We find the appeal to be wholly frivolous and grant counsel’s

motion to withdraw. For the reasons which follow, we affirm the judgment of the trial

court.

                                          I.,II.,III., and IV.

         {¶12} In his first four assignments of error, Appellant raises the same issue

wherein he essentially argues he was entitled to have the provisions of H.B. 86 applied

to his sentence.

         {¶13} This Court has previously held the provisions of H.B. 86 are not retroactive

and are not a basis for resentencing. “Contained within H.B. 86 at Section 4 is the

specific legislative intent not to make the changes retroactive:

         {¶14} ‘The amendments* * *apply to a person who commits an offense specified

or penalized under those sections on or after the effective date of this section and to a

person to whom division (B) of section 1.58(B) of the Revised Code makes the

amendments applicable.’

         {¶15} R.C. 1.58(B) provides: ‘If the penalty, forfeiture, or punishment for any

offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,

or punishment, if not already imposed, shall be imposed according to the statute as

amended.’
Guernsey County, Case No. 12CA00004                                                      5


       {¶16} Based upon the statutory provisions, we find the trial court did not err in

denying Appellant's motion for sentence modification.”         State v. Fields 2011 WL

5855008, 1 (Ohio App. 5 Dist.).

       {¶17} Appellant is not entitled to resentencing under H.B. 86 because the statute

does not retroactively apply to those offenders who were sentenced prior to the

enactment of the statute. For this reason, Appellant’s first four assignments of error are

overruled.

                                                V.

       {¶18} In his fifth assignment of error, Appellant argues the trial court lacked

sufficient evidence to convict him of Possession of Crack Cocaine.            Appellant is

appealing the denial of a motion for resentencing relative to H.B. 86. The issue raised

in the instant Assignment of Error relates to the initial conviction which is not currently

before this Court.

       {¶19} Under the doctrine of res judicata, a final judgment of conviction bars a

convicted 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 (1996), 77 Ohio St.3d 93, 95 (Emphasis added).

       {¶20} We find Appellant’s argument is barred by the doctrine of res judicata

because Appellant could have raised the issue in a direct appeal of his initial conviction.

For this reason, Appellant’s fifth assignment of error is overruled.
Guernsey County, Case No. 12CA00004                                                 6


         {¶21} For these reasons, after independently reviewing the record, we agree

with counsel's conclusion no arguably meritorious claims exist upon which to base an

appeal. Hence, we find the appeal to be wholly frivolous under Anders, grant counsel's

request to withdraw, and affirm the judgment of the Guernsey County Court of Common

Pleas.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ John W. Wise _____________________
                                           HON. JOHN W. WISE


                                           s/ Julie A. Edwards ___________________
                                           HON. JULIE A. EDWARDS
Guernsey County, Case No. 12CA00004                                               7


           IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
MAURICE LATHAM                            :
                                          :
       Defendant-Appellant                :        Case No. 12CA00004


       For the reasons stated in our accompanying Opinion, we find this appeal to be

wholly frivolous under Anders, grant counsel's request to withdraw, and affirm the

judgment of the Guernsey County Court of Common Pleas. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ John W. Wise _____________________
                                          HON. JOHN W. WISE


                                          s/ Julie A. Edwards ___________________
                                          HON. JULIE A. EDWARDS
