[Cite as State v. Hudson, 2011-Ohio-3832.]



         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 95581


                                    STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.

                                    TONIO HUDSON
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-510582

              BEFORE:             Blackmon, P.J., Rocco, J., and E. Gallagher, J.

              RELEASED AND JOURNALIZED:                      August 4, 2011
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                                     -i-

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

John Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

Tonio Hudson, Pro Se
Inmate No. A551-480
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

Katherine Mullin
Blaise D. Thomas
Assistant Prosecuting Attorneys
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Tonio Hudson, through counsel, appeals his sentence

and assigns the following error for our review:

      “I. Appellant’s sentence is contrary to law and violates due
      process because the trial court failed to consider whether
      the sentence was consistent with sentences imposed for
      similar crimes committed by similar offenders and
      because a twenty-eight to life sentence for a first time
      offender is inconsistent with such sentences.”

      {¶ 2} Hudson assigns the following pro se errors for our review:

      “I. Prosecutorial misconduct/misconduct [sic] of a state’s
      witness a federal employee.”

      “II. Ineffective assistance of counsel.”

      “III. The trial judge should have granted objection to
      flight instruction after defense was prevented from fully
      cross-examining witness whose testimony was used to
      establish flight. This denied defendant right to a fair
      trial under the Ohio and United States Constitution.”

      “IV. The trial court abused it’s [sic] discretion by denying
      defendant’s motion for a mistrial and overruling
      objection.”

      “V. Ineffective assistance of counsel.”

      “VI. Trial judge should have granted motion for mistrial
      after federal witness gave testimony stating that
      defendant had criminal history.”

      “VII. The trial court errored [sic] in overruling motion to
      suppress identification.”
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      “VIII. The trial court errored [sic] in overruling motion to
      suppress evidence.”

      {¶ 3} Having reviewed the record and pertinent law, we affirm

Hudson’s sentence. The apposite facts follow.

      {¶ 4} On May 15, 2008, the Cuyahoga County Grand Jury indicted

Hudson on two counts of aggravated robbery and two counts of aggravated

murder with felony murder specifications.       All counts carried three-year

firearm specifications. The state subsequently dismissed the felony murder

specifications.   Hudson pleaded not guilty at his arraignment, subsequently

filed a motion to suppress evidence and identification. The trial court denied

the motion and the case proceeded to a jury trial.

      {¶ 5} On June 19, 2008, the jury found Hudson not guilty of one count

of aggravated murder as charged, but guilty of the lesser included charge of

murder.    The jury found Hudson guilty of the remaining counts along with

the attached firearm specifications.     On June 30, 2008, the trial court

sentenced Hudson to an aggregate prison term of 28 years to life.

      {¶ 6} On Hudson’s direct appeal, we affirmed his conviction, but

remanded for resentencing, because we found that the trial court erred by

sentencing Hudson on two murder charges involving the same victim. State

v. Hudson, Cuyahoga App. No. 91803, 2009-Ohio-6454.
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      {¶ 7} On July 21, 2010, the trial court conducted the resentencing

hearing, the state elected to proceed on the aggravated murder charge, the

trial court merged all four offenses, and sentenced Hudson to an aggregate

prison term of 28 years to life for aggravated murder. Hudson now appeals.

                           Sentence Contrary to Law

      {¶ 8} In the sole assigned error, through counsel, Hudson argues his 28

years to life sentence was contrary to law. We disagree.

      {¶ 9} We review felony sentences using the Kalish framework. State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.      In its plurality

opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate

courts “must apply a two-step approach.” Kalish at ¶4.

      {¶ 10} Appellate courts must first “examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.”

Id. at 26. See, also, R.C. 2953.08(G). If this first prong is satisfied, then we

review the trial court’s decision under an abuse of discretion standard. Id. at

¶4 and ¶19.

      {¶ 11} In the first step of our analysis, we review whether Hudson’s

sentence is contrary to law as required by R.C. 2953.08(G).      As the Kalish
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court noted, post- Foster “trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make

findings and give reasons for imposing maximum, consecutive, or more than

the minimum sentence.” Id. at 11, quoting Foster at paragraph seven of the

syllabus; State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1,

paragraph three of the syllabus. The Kalish court held that although Foster

eliminated mandatory judicial fact-finding, it left R.C. 2929.11 and 2929.12

intact. Kalish at 13.    Therefore, the trial court must still consider those

statutes when imposing a sentence. Id., citing Mathis at 38.

      {¶ 12} R.C. 2929.11(A) provides that:

      “[A] court that sentences an offender for a felony shall be
      guided by the overriding purposes of felony sentencing [:]
      * * * to protect the public from future crime by the
      offender and others and to punish the offender. To
      achieve those purposes, the sentencing court shall
      consider the need for incapacitating the offender,
      deterring the offender and others from future crime,
      rehabilitating the offender, and making restitution to the
      victim of the offense, the public, or both.”

      {¶ 13} R.C. 2929.12 provides a nonexhaustive list of factors a trial court

must consider when determining the seriousness of the offense and the

likelihood that the offender will commit future offenses.

      {¶ 14} R.C. 2929.11 and 2929.12 are not fact-finding statutes.   Instead,

they “serve as an overarching guide for trial judges to consider in fashioning
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an appropriate sentence.” Kalish at 17. Thus, “[i]n considering these statutes

in light of Foster, the trial court has full discretion to determine whether the

sentence satisfies the overriding purposes of Ohio’s sentencing structure.” Id.

      {¶ 15} In the instant case, Hudson specifically argues that his sentence

is contrary to law because it is inconsistent with sentences imposed for

similar crimes committed by similar offenders.

      {¶ 16} We note that “[c]onsistency in sentencing is achieved by weighing

the sentencing factors.” State v. Dowell, Cuyahoga App. No. 88864,

2007-Ohio-5534, ¶8, citing State v. Georgakopoulos, Cuyahoga App. No.

81934, 2003-Ohio-4341.

      {¶ 17} As an appellate court, we are not required to decide whether the

lower court “imposed a sentence in lockstep with others, but whether the

sentence is so unusual as to be outside the mainstream of local judicial

practice. Although the offense[s] may be similar, distinguishing factors may

justify dissimilar treatment.”   State v. Rabel, Cuyahoga App. No. 91280,

2009-Ohio-350, ¶15, citing State v. Dawson, Cuyahoga App. No. 86417,

2006-Ohio-1083.

      {¶ 18} In the instant case, there is nothing in the record to demonstrate

that Hudson’s sentence is “outside the mainstream of local judicial practice.”

Hudson was convicted of aggravated murder in violation R.C. 2903.01, which
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provides that he could be imprisoned for an indefinite term of fifteen years to

life.

        {¶ 19} Therefore, a sentence of 28 years to life is within the statutory

range allowed by law.      Since Hudson was sentenced within the statutory

range and has failed to demonstrate how his sentence violated Ohio’s

sentencing statutes, we do not find that it was contrary to law.

        {¶ 20} We next consider whether the trial court abused its discretion.

Kalish at ¶4 and ¶19. An “abuse of discretion” is more than an error of law

or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St. 3d 217, 219, 450

N.E.2d 1140, citing State v. Adams (1980), 62 Ohio St.2d 151, 404 N.E.2d

144.

        {¶ 21} We find nothing in the record to suggest that the trial court’s

decision was unreasonable, arbitrary, or unconscionable.       A review of the

record indicates that the trial court also expressly stated, at the original

sentencing hearing, that it had considered all factor of the law and found that

prison was consistent with the purposes and principles of R.C. 2929.11.

Also, at Hudson’s resentencing, the trial court restated that it had considered

all factors of the law and found that prison was consistent with the purposes
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and principles of R.C. 2929.11.       Accordingly, we overrule Hudson’s sole

assigned error through counsel

                                  Pro Se Errors

      {¶ 22} A review of the record indicates that all eight pro se assigned

errors were either raised or could have been in Hudson’s direct appeal of his

conviction. As such they are barred by the doctrine of res judicata. The

doctrine of res judicata bars further litigation in a criminal case of issues that

were raised previously or could have been raised previously in a direct appeal.

 State v. Reddy, Cuyahoga App. No. 95814, 2011-Ohio-2927, citing State v.

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

syllabus.

      {¶ 23} Since we have addressed or could have addressed these issues,

our disposition of them remains the “law of the case,” and Hudson’s pro se

assigned errors are barred by the doctrine of res judicata. State v. Saxon,

109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824.             Accordingly, we

overrule Hudson’s pro se assigned errors.

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

      The court finds there were reasonable grounds for this appeal.
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     It is ordered that a special mandate be sent to said court to carry this

judgment into execution. Case remanded to the trial court for execution of

sentence.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

KENNETH A. ROCCO, J., and
EILEEN A. GALLAGHER, J., CONCUR
