[Cite as State v. Alt, 2012-Ohio-5182.]



                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 98313



                                          STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           SUSAN ALT
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-527674

        BEFORE: Stewart, P.J., Rocco, J., and Keough, J.

        RELEASED AND JOURNALIZED:                    November 8, 2012
ATTORNEY FOR APPELLANT

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, OH 44137


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Mary H. McGrath
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, P.J.:

       {¶1} Defendant-appellant Susan Alt appeals from an order that denied her motion

to vacate her conviction and sentence on grounds that the court’s sentencing entry did not

contain “a clear order of forfeiture.” We affirm because Alt’s arguments are barred by

res judicata and otherwise without merit.

       {¶2} In 2010, Alt pleaded guilty to 31 counts relating to a mortgage fraud scheme.

As part of her plea agreement, she agreed to forfeit $2 million. Prior to sentencing, she

sought to withdraw her plea on grounds that she did not fully understand the ramifications

of her plea. The court held a hearing and denied the motion to withdraw the plea. We

affirmed, finding that Alt “understood the ramifications of her plea * * *.” State v. Alt,

8th Dist. No. 96298, 2011-Ohio-5393, ¶ 13.

       {¶3} Alt then filed an application to reopen her appeal on grounds that appellate

counsel was ineffective for failing to raise an ineffective assistance of counsel argument

on direct appeal. We denied the motion because it was untimely and because Alt failed

to demonstrate good cause to justify her untimely motion. State v. Alt, 8th Dist. No.

96298, 2011-Ohio-5393, reopening denied, Motion No. 453869 (May 9, 2012).

       {¶4} Alt also filed a petition for postconviction relief in which she claimed

ineffective assistance of trial counsel for improperly handling her motion to withdraw the

guilty plea, failing to provide proper legal counsel on the ramifications of the forfeiture,

and failing to give her timely notice of the date of her sentencing hearing. The court
denied postconviction relief without a hearing, finding that the ineffective assistance of

counsel claim was barred by res judicata and that her remaining claims were contradicted

by documents attached to her petition. We affirmed, finding the evidence proved that Alt

voluntarily entered her guilty plea without coercion from defense counsel and that “Alt

voluntarily, knowingly, and intelligently agreed to forfeit $2 million to the state.” State

v. Alt, 8th Dist. No. 98087, 2012-Ohio-3580, ¶ 24.

       {¶5} The motion at issue in this appeal — that the court’s sentencing entry failed

to contain a “clear” order of forfeiture — is barred by res judicata.

       {¶6} Principles of res judicata bar a criminal defendant 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 that

resulted in that judgment of conviction or on appeal from that judgment. State v. Perry,

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

       {¶7} Alt did question the validity of the forfeiture order in her appeal from the

court’s refusal to allow her to withdraw her guilty plea.         We concluded that Alt’s

arguments were a “delay” tactic, a conclusion demonstrated by the record. The court’s

sentencing entry states: “Defendant to forfeit to the State: $2,000,000.00.” That entry

was consistent with the terms of the plea bargain as described by the state: the transcript

of the plea hearing shows that the plea bargain included a “forfeiture at the time of the

sentencing to the State of Ohio of two million dollars.” The issue was fully addressed

and decided adversely to Alt, with this court finding no basis for Alt to complain that she
was unaware that a consequence of her guilty plea was that she would forfeit $2 million

to the state. She is barred from raising it again in subsequent legal motions.

         {¶8} Alt’s complaint that the court could not order forfeiture because the

indictment did not contain a forfeiture specification as required by R.C. 2941.1417(A) is

likewise barred by res judicata. She could have raised that argument on direct appeal

from her conviction, but chose not to.          She is thus barred from raising it in

postconviction motions.

         {¶9} In any event, Alt fails to comprehend that indictments may be amended at any

time “before, during, or after a trial[.]” Crim.R. 7(D). Her plea bargain was made to

counts that were not charged in the original indictment, so the court necessarily had to

amend the indictment to reflect the new charges. Indictments may be amended by way

of a plea bargain with the defendant’s consent without resubmitting the matter to the

grand jury. State v. Talani, 8th Dist. No. 56436, 1989 Ohio App. LEXIS 1586 (Apr. 27,

1989); State v. Wendt, 11th Dist. No. 93-P-0042, 1993 Ohio App. LEXIS 5767 (Dec. 3,

1993).

         {¶10} The transcript shows that Alt was fully aware that the state was amending

certain counts as part of the plea bargain and that she would be forfeiting money as a

result of the plea. The forfeiture of money was acknowledged by defense counsel and

confirmed by the court in its colloquy with Alt. The indictment was thus properly

amended to include the forfeiture without the need to resubmit it to the grand jury.
       {¶11} Finally, the court had no obligation to conduct a hearing on Alt’s motion to

vacate her sentence. A hearing is not required for every motion filed in a criminal case.

When the substance of the claims made in a motion are, as here, plainly barred by res

judicata or otherwise without merit, no hearing is necessary.

       {¶12} Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.               A   certified

copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of

Appellate Procedure.




MELODY J. STEWART, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
