[Cite as State v. Ellis, 2017-Ohio-8581.]

Court of Appeals of Ohio 

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 105705 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

L’DDARYL ELLIS

DEFENDANT-APPELLANT 

JUDGMENT: 

DISMISSED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-12-568532-A 

BEFORE: Kilbane, J., E.A. Gallagher, P.J., and Jones, J. 

RELEASED AND JOURNALIZED: November 16, 2017 
APPELLANT

L’Ddaryl Ellis, pro se 

Inmate No. A641-151 

Trumbull Correctional Institution 

P.O. Box 901 

Leavittsburg, Ohio 44430 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

Amy Venesile 

Assistant County Prosecutor 

The Justice Center - 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

{¶1} Defendant-appellant, L’Ddaryl Ellis (“Ellis”), pro se, appeals his convictions and 

sentence for involuntary manslaughter and murder as well as the trial court’s denial of his motion 

to correct his sentence. For the reasons set forth below, we find that Ellis’s arguments are both 

unpersuasive and precluded by the doctrines of res judicata and the law of the case. 

Accordingly, we dismiss the instant appeal. 

{¶2} This court previously stated the pertinent facts of the present case in State v. Ellis, 

8th Dist. Cuyahoga No. 99830, 2014-Ohio-116 (“Ellis I”), as follows: 

[In November 2012], the Cuyahoga County Grand Jury returned a 14-count 

indictment against Ellis relating to two separate shooting incidents. Relative to 

the first incident, the grand jury indicted Ellis on one count of discharge of a 

firearm on or near prohibited premises and two counts of felonious assault. All 

three counts contained one and three-year firearm specifications. 

Relative to the second incident, wherein [Elissa Hereford (“Hereford”),] a resident 

of East 95th Street who had been looking through her window, was struck and 

killed by a bullet. The grand jury indicted Ellis on one count of discharge of a 

firearm on or near prohibited premises, one count of aggravated murder, one 

count of murder, and seven counts of felonious assault. The grand jury also 

indicted Ellis on one count of aggravated riot with purpose to commit or facilitate 

the commission of any offense of violence. All 11 counts contained one and 

three-year firearm specifications. 

[In December 2012], Ellis pleaded not guilty at the arraignment. Subsequently, 

numerous pretrials were conducted. Eventually, Ellis executed a waiver of his 

right to a jury trial, and [in March 2013], a bench trial commenced. 

* * * 

At the close of the state’s case, the trial court granted Ellis’s motion for acquittal 

on six counts. The trial court later found Ellis not guilty of aggravated murder, but 

considered the lesser included offense of murder, as well as involuntary 

manslaughter, and found him guilty of involuntary manslaughter with the attached 

firearm specifications. In addition, the trial court found Ellis guilty of murder, two 

counts of felonious assault, and the single count of aggravated riot, all with the 

attached firearm specifications. 
On April 15, 2013, Ellis appeared for sentencing. The trial court merged the 

involuntary manslaughter, felonious assault, and aggravated riot counts with the 

murder count for sentencing purposes. The trial court then imposed a prison term 

of 15 years to life to be served after Ellis served three years for the firearm 

specifications. 

Id. at  25, 1819. 

{¶3} In Ellis I, we affirmed all of Ellis’s convictions, except the aggravated riot. Id. at 

 2. Ellis subsequently filed an application to reopen his direct appeal in Ellis I pursuant to 

App.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), which was 

denied. See State v. Ellis, 8th Dist. Cuyahoga No. 99830, 2014-Ohio-3226 (“Ellis II”). 

{¶4} In April 2017, Ellis filed a pro se “motion to correct an illegal sentence” with the 

trial court. The trial court denied this motion, stating: 

In response to [Ellis’s] motion to correct an illegal sentence, motion is denied. 

[Ellis] argues that he could not be legally convicted of Count 6 felony murder * * 

* and Count 5, the lesser-included offense of involuntary manslaughter * * * for 

the death of a single person. This argument flies in the face of well-established 

and unassailable statutory and decisional law and is rejected. The court properly 

merged [Ellis’s] convictions for Counts 5 and 6 (along with some other counts) 

into a single conviction for Count 6 and issued one sentence thereon. [Ellis] 

incorrectly argues that each of these two counts depended upon his conviction for 

Count 9 felonious assault. Both Counts 5 and 6 may have contained an element 

referring to the commission or attempt to commit a felonious assault. The latter 

elements however[,] are independent of whether [Ellis] was or was not convicted 

of the specific felonious assault alleged in Count 9. 
{¶5} It is from this order that Ellis now appeals, raising the following assignments of 

error for our review: 

Assignment of Error One 

The trial court erred when it sentenced [Ellis] to a void/illegal sentence in 

violation of the Fifth and Fourteenth Amendments to the United States 

Constitution and Article I, Section 16 of the Ohio Constitution. 

Assignment of Error Two 

The trial court erred when it refused to vacate the charge of felony murder with 

predicated offense of felonious assault attached as [Ellis] asserts it is not a 

cognizable crime in Ohio in violation of [Ellis’s] due process rights to the Fifth 

and Fourteenth Amendments to the United States Constitution and Article I, 

Section 16 of the Ohio Constitution. 

{¶6} We note that these assignments of error are nearly identical to the arguments 

raised in Ellis’s pro se motion that the trial court denied. Throughout his brief, Ellis argues that 

the trial court erred in rejecting these arguments. 

{¶7} In the first assignment of error, Ellis argues that he could not be convicted of both 

murder and involuntary manslaughter. 

{¶8} Ellis has previously raised this argument, and we determined in Ellis II that it is 

unpersuasive. We held: 

Ellis’s first argument is that his double jeopardy rights were violated. He seems 

to maintain that his multiple indictments and convictions subjected him to be 

twice put in jeopardy for the same offense. In other words[,] a determination of 

guilt on one count of a multicount indictment immediately raises a double 

jeopardy bar to prosecution on the remaining counts. The United States Supreme 

Court rejected that argument in Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 

81 L.Ed.2d 425 (1984). The double jeopardy [c]lause is not implicated by 

continuing prosecution on the other charges in the indictment. Id. at 435. To the 

extent that Ellis argues that he was punished multiple times for the same crime, 

the argument is ill-founded. The trial court merged all the counts relating to 

[Hereford’s] death and pursuant to law sentenced only on one count, murder. 

Moreover, appellate counsel argued that all of the counts should have been 

merged and, thus, could not be considered ineffective for failing to argue double 
jeopardy. Moreover, res judicata also bars this argument because Ellis raised the 

issue in his pro se App.R. 26(A) motion for reconsideration, which this court 

denied. 

Id. at  9. 

{¶9} Thus, Ellis’s first assignment of error is barred by the doctrine of res judicata. 

{¶10} In the second assignment of error, Ellis, relying on State v. Nolan, 141 Ohio St.3d 

454, 2014-Ohio-4800, 25 N.E.3d 1016, argues that his murder conviction should be vacated 

because “it is not a cognizable crime in Ohio.” In Nolan, the Ohio Supreme Court determined 

that “[a]ttemped felony murder is not a cognizable crime in Ohio.” Id. at syllabus. The 

defendant in Nolan was convicted of attempted murder; Nolan’s victim did not die as a result of 

Nolan’s actions. In the present case, Ellis was convicted of murder, not an attempt of this crime. 

Nolan is distinguishable from the instant case and its holding is inapplicable to Ellis’s murder 

conviction. 

{¶11} Moreover, as discussed above, this court has previously upheld Ellis’s convictions 

of murder and involuntary manslaughter in his direct appeal. See Ellis I. When an appellate 

court affirms the convictions in an appellant’s first appeal, the propriety of those convictions 

becomes the law of the case, and subsequent arguments seeking to overturn them are barred. 

State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 11, State v. Harrison, 8th Dist. 

Cuyahoga No. 88957, 2008-Ohio-921,  8. 

{¶12} Based on the foregoing, Ellis’s arguments, in addition to being unpersuasive, are 

barred by the doctrines res judicata and the law of the case. 

{¶13} Appeal is dismissed. 

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

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common pleas 

court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 

EILEEN A. GALLAGHER, P.J., and 

LARRY A. JONES, SR., J., CONCUR