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State v. Tucker

Court of Appeals of Ohio, Ninth District, Lorain

June 12, 2017

STATE OF OHIO Appellee
v.
KAREEM TUCKER Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nos. 10CR081026 12CR084231

          APPEARANCES: JAMES M. BURGE, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          HENSAL, Presiding Judge.

         {¶1} Kareem Tucker appeals his convictions and sentences in the Lorain County Court of Common Pleas. For the following reasons, this Court affirms.

         I.

         {¶2} In March 2012, a jury found Mr. Tucker guilty of multiple counts of kidnapping, as well as counts of aggravated robbery, aggravated burglary, robbery, burglary, and vandalism. Following merger of some of the offenses, the trial court sentenced him to a total of 25 years imprisonment. Eight months later, another jury found Mr. Tucker guilty of trafficking in drugs, possession of drugs, having weapons while under disability, possessing criminal tools, and use or possession of drug paraphernalia. After merging some of those offenses, the trial court sentenced him to a total of thirteen years and four months imprisonment. It also ordered his sentences in the drug case to run consecutively to the prison term that had been imposed in the kidnapping case.

         {¶3} Mr. Tucker appealed both judgments. In the kidnapping case, this Court concluded that some of the trial court's statements made it appear that it had imposed a harsher sentence on Mr. Tucker because he chose to go to trial. State v. Tucker, 9th Dist. Lorain No. 14CA010704, 2016-Ohio-1354, ¶ 30. We, therefore, vacated his sentence and remanded the matter for a new sentencing hearing. Id. In the drug case, this Court concluded that the State failed to present sufficient evidence to establish beyond a reasonable doubt that Mr. Tucker had a weapon under disability. State v. Tucker, 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353, ¶ 27. We also concluded that the record again suggested that the court had increased Mr. Tucker's sentence for exercising his right to a trial by jury. Id. at ¶ 33. We, therefore, vacated his sentence, and remanded for further proceedings.

         {¶4} On remand, a different judge held a combined resentencing hearing. In the kidnapping case, the court sentenced Mr. Tucker to a total of 28 years imprisonment. In the drug case, it sentenced him to a total of 13 years imprisonment. The court ordered the sentences to run consecutive to each other, for a total prison term of 41 years. Mr. Tucker has appealed his sentences, assigning seven errors. Because some of his assignments of error raise similar issues, we will address them together.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT, BY ENTERING A JUDGMENT OF CONVICTION ON COUNT ONE OF THE INDICTMENT, TRAFFICKING IN DRUGS, AS A FELONY OF THE FIRST DEGREE, WHEN APPELLANT WAS CHARGED WITH, AND FOUND GUILTY BY THE JURY OF, TRAFFICKING IN DRUGS AS A FELONY OF THE FIFTH DEGREE.

         ASSIGNMENT OF ERROR II

         THE TRIAL COURT ERRED, AND TO THE PREJUDICE OF APPELLANT, BY ENTERING A JUDGMENT OF CONVICTION AND SENTENCE ON COUNT FIVE OF THE INDICTMENT, TRAFFICKING IN COCAINE, AS A FELONY OF THE FOURTH DEGREE, WHEN APPELLANT WAS FOUND GUILTY BY THE JURY OF TRAFFICKING IN COCAINE AS A FELONY OF THE FIFTH DEGREE.

         {¶5} Mr. Tucker argues that the trial court incorrectly wrote in its sentencing entry that one of his drug trafficking convictions was a felony of the first degree and that another was a felony of the fourth degree. According to Mr. Tucker, the jury's verdict only supports the conclusion that they were felonies of the fifth degree because the verdict forms do not contain any of the additional findings that are necessary to enhance the level of the offenses.

         {¶6} The State argues that Mr. Tucker's arguments are barred by res judicata, asserting that they could have been made in his first appeal. The doctrine of res judicata "bars the assertion of claims against a valid, final judgment of conviction that have been raised or could have been raised on appeal." State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59, citing State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.

         {¶7} In its original sentencing entry, the trial court wrote that the jury had found Mr. Tucker guilty of four counts of drug trafficking. The court wrote that one of the counts was a felony of the first degree, one was a felony of the fourth degree, and the others were felonies of the fifth degree. Mr. Tucker did not challenge the designations on appeal. On resentencing, the court again wrote that a jury found Mr. Tucker guilty of four counts of drug trafficking and that one of those counts is a felony of the first degree, one is a felony of the fourth degree, and two are felonies of the fifth degree. Upon review of the record, we conclude that Mr. Tucker could have challenged the offense level of his trafficking convictions in his initial appeal. His argument, therefore, is barred by the doctrine of res judicata. State v. D'Ambrosio, 73 Ohio St.3d 141, 143 (1995) ("[If] an argument ...


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