Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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
EILEEN KILBANE, PRESIDING JUDGE
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.
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. 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.
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.
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
It is from this order that Johnson appeals, raising the
following single assignment of error for review:
trial court erred when it denied Johnson's petition to
vacate or set aside judgment or sentence.
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.
R.C. 2953.21(A)(1) sets forth the criteria under which