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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 18, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MARVIN F. JOHNSON, SR. DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-594187-B

          FOR APPELLANT Marvin F. Johnson, Sr., pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Frank Romeo Zeleznikar Patrick J. Lavelle Assistant County Prosecutors

          BEFORE: Kilbane, P.J., McCormack, J., and Laster Mays, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Defendant-appellant, Marvin Johnson, Sr. ("Johnson"), pro se, appeals from the trial court's denial of his petition to vacate or set aside judgment of conviction or sentence. For the reasons set forth below, we affirm.

         {¶2} The facts relevant to this appeal have been set out in the companion case of State v. Johnson, 8th Dist. Cuyahoga No. 105560, and need not be repeated in their entirety herein. However, we note the following facts relevant to Johnson's appeal. On December 15, 2015, Johnson pled no contest to drug trafficking, drug possession, and possessing criminal tools.[1] Johnson's sentencing hearing was not held until May 2016. Johnson was sentenced to a total of six years in prison. The court stayed the execution of Johnson's sentence because Johnson needed a heart ablation procedure. The court ordered Johnson to begin serving his sentence no later than August 1, 2016, at 9:00 a.m. or his sentence would be vacated and a new sentence would be imposed. Johnson was to remain on bond.

         {¶3} In July 2016, Johnson requested appointed counsel. The court assigned Johnson appellate counsel, but then vacated its assignment since Johnson was not indigent and had retained counsel throughout the proceedings. Also in July 2016, a bond hearing was set because Johnson's probation officer advised the court that Johnson tested positive for marijuana. The hearing was set for July 25, 2016, but Johnson failed to appear. The trial court then forfeited his bond and issued a capias for Johnson. Johnson was remanded in August 2016.

         {¶4} In February 2017, the trial court resentenced Johnson. The court sentenced Johnson to a total of eight years in prison. The companion case is Johnson's appeal from that order. See Johnson, 8th Dist. Cuyahoga No. 105560. After filing this appeal, Johnson filed a "petition to vacate or set aside judgment of conviction or sentence." In his petition, Johnson argued that: his due process rights were violated, his cruel and unusual punishment rights were infringed, and his right to effective assistance of counsel was violated. The state opposed. The trial court issued an opinion denying Johnson's motion. The court interpreted Johnson's motion as a petition for postconviction relief and found that the motion was barred by res judicata because Johnson offered no evidence outside the record to support his claims.

         {¶5} It is from this order that Johnson appeals, raising the following single assignment of error for review:

         Assignment of Error

         The trial court erred when it denied Johnson's petition to vacate or set aside judgment or sentence.

         {¶6} Johnson argues that the trial court erred when it denied his petition to vacate sentence or judgment of conviction on the basis of res judicata.

         {¶7} R.C. 2953.21(A)(1) sets forth the criteria under which ...


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