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State v. Brooks

Court of Appeals of Ohio, Ninth District, Lorain

August 21, 2017

STATE OF OHIO Appellee
v.
VICTOR C. BROOKS Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13CR088209

          VICTOR C. BROOKS, pro se, Appellant.

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

          DECISION AND JOURNAL ENTRY

          HENSAL, Presiding Judge.

         {¶1} Victor Brooks appeals the denial of his motion requesting resentencing in the Lorain County Court of Common Pleas. For the following reasons, this Court affirms.

         I.

         {¶2} A jury found Mr. Brooks guilty of four counts of possession of drugs and one count of trafficking in drugs, and the trial court sentenced him to a total of 49 months in prison. In his delayed direct appeal, Mr. Brooks argued that the trial court incorrectly sentenced him on allied offenses, that the court failed to make the findings required to impose consecutive sentences, and that the prosecutor committed misconduct during the trial. This Court recently upheld Mr. Brooks's convictions, but determined that the trial court did not make the findings required for consecutive sentences. State v. Brooks, 9th Dist. Lorain No. 16CA010958, 2017-Ohio-5620, ¶ 10. It, therefore, has remanded the action for further proceedings. Id. at ¶ 20.

         {¶3} While his direct appeal was pending, Mr. Brooks filed a motion in the trial court requesting resentencing. In his motion, he argued that some of his offenses were allied and that the trial court failed to make the findings required to impose consecutive sentences. The trial court denied his motion. Mr. Brooks has appealed its order, assigning two errors.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO BE RESENTENCED BASED ON SENTENCE BEING IMPOSED CONTRARY TO LAW AND FAILURE TO MERGE SENTENCES UNDER R.C. 2941.25 (ALLIED OFFENSES) WITHOUT HOLDING AN EVIDENTIARY HEARING OR STATING ITS REASONS FOR DENYING APPELLANT'S MOTION.

         {¶4} Mr. Brooks argues that the trial court erred when it imposed separate sentences for some of his offenses because they were allied and should have merged for sentencing purposes. "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 * * * on an appeal from that judgment." State v. Szefcyk, 77 Ohio St.3d 93 (1996), syllabus. Mr. Brooks argued in his delayed direct appeal that the trial court erred when it failed to merge several of the counts against him as allied offenses of similar import. Brooks at ¶ 4. We, therefore, conclude that his allied offense argument is barred under the doctrine of res judicata. Mr. Brooks's first assignment of error is overruled.

         ASSIGNMENT OF ERROR II

         THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO BE RESENTENCED BASED ON SENTENCE BEING IMPOSED CONTRARY TO LAW AND FAILURE TO COMPLY WITH R.C. 2929.14(C)(4) WITHOUT HOLDING AN ...


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