[Cite as State v. Peterson, 2012-Ohio-2200.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 97362 

STATE OF OHIO 

PLAINTIFF-APPELLEE

vs.

DAMIEN PETERSON

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-471307 

BEFORE: Kilbane, J., Celebrezze, P.J., and Sweeney, J. 

RELEASED AND JOURNALIZED: May 17, 2012
APPELLANT

Damien Peterson, pro se 

Inmate No. 503-884 

Marion Correctional Institution 

940 Marion-Williamsport Road 

Marion, Ohio 43302 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Mary McGrath 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

{¶1} Defendant-appellant, Damien Peterson (“Peterson”), pro se, appeals from 

the trial court’s judgment denying his motion to dismiss the indictment for constitutional 

and statutory violations. Finding no merit to the appeal, we affirm. 

{¶2} In October 2005, Peterson was charged with aggravated robbery, felonious 

assault, and having a weapon while under disability. The aggravated robbery and 

felonious assault counts each contained a one- and three-year firearm specification, a 

notice of prior conviction and a repeat violent offender specification. 

{¶3} The matter proceeded to a jury trial, at which he was found guilty of 

aggravated robbery, felonious assault, and the accompanying firearm specifications. The 

trial court found him guilty of having a weapon while under disability and the remaining 

specifications. The trial court sentenced Peterson to three years in prison on the firearm 

specifications and three years in prison on the repeat violent offender specifications, to be 

served prior and consecutive to the sentences imposed on the underlying offenses. The 

court further sentenced Peterson to nine years in prison on the aggravated robbery charge, 

five years in prison on the felonious assault charge, and four years in prison on the having 

a weapon while under disability charge. The trial court ordered that these sentences be 

served concurrent to each other, for a total of 15 years in prison. 

{¶4} Peterson filed a direct appeal from his convictions to this court. He 

challenged the sufficiency and manifest weight of the evidence and asserted prosecutorial 

misconduct, as well as ineffective assistance of trial counsel. While we rejected all of 
Peterson’s assignments of error, we found plain error in the sentence on the repeat violent 

offender specifications. Therefore, we modified Peterson’s sentence to 12 years in 

prison and remanded the matter to the trial court for correction of the sentencing entry. 

State v. Peterson, 8th Dist. No. 88248, 2007-Ohio-1837, ¶ 59-60 (Peterson I). On May 

29, 2007, the trial court entered an order amending Peterson’s sentence to a total of 12 

years in prison. 

{¶5} While Peterson I was pending, Peterson filed a petition to vacate or set 

aside his sentence in February 2007. The trial court denied this motion in March 2007. 

The trial court subsequently filed findings of fact and conclusions of law in July 2007. 

Peterson then appealed from this decision in State v. Peterson, 8th Dist. No. 90263, 

2008-Ohio-4329 (Peterson II). Peterson argued that the court erred by dismissing his 

petition as insufficient. We affirmed the trial court’s judgment, finding no error in its 

decision. Peterson II at ¶ 16. 

{¶6} Then in November 2009, Peterson filed a motion for resentencing, arguing 

he was entitled to a de novo sentencing hearing due to the trial court’s failure to advise 

him at his original sentencing hearing of the consequences of violating postrelease 

control. The trial court denied this motion in April 2010 and Peterson appealed this 

decision in State v. Peterson, 8th Dist. No. 90561, 2011-Ohio-344 (Peterson III). 

Peterson argued that he was entitled to be resentenced at a de novo sentencing hearing 

because the trial court failed to advise him at his original sentencing hearing of the 
consequences for violating the terms of postrelease control. The State conceded the 

error. Peterson III at ¶ 6. 

{¶7} We found that the trial court failed to advise Peterson at the original 

sentencing hearing of the consequences for violating postrelease control. Relying on the 

Ohio Supreme Court’s decision in State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 

942 N.E.2d 332, we remanded the matter for a resentencing hearing limited to the proper 

imposition of postrelease control. Id. at ¶ 8. 

{¶8} In April 2011, Peterson filed a motion to dismiss the indictment for 

constitutional and statutory violations. Peterson argued that his case was still pending 

because his sentence is void in part due to postrelease control violations. As a result, 

Peterson claimed that his right to a speedy trial was violated. In May 2011, the trial court 

held a resentencing hearing pursuant to this court’s decision in Peterson III. The trial 

court advised Peterson that he was subject to five years of mandatory postrelease control 

on the aggravated robbery count, three years of mandatory postrelease control on the 

felonious assault count, and three years of mandatory postrelease control on the having a 

weapon while under disability count. The trial court also denied Peterson’s motion to 

dismiss the indictment for constitutional and statutory violations. 

{¶9} It is from this order that Peterson appeals, raising the following single 

assignment of error of review. 

 ASSIGNMENT OF ERROR 

The trial court erred when [it denied Peterson’s] motion to dismiss the 

indictment for constitutional and statutory speedy trial violations. 
{¶10} Peterson claims that the trial court erred when it denied his motion to 

dismiss, arguing that his case has been pending for years because postrelease control was 

not properly imposed. 

{¶11} Contrary to Peterson’s argument, his case has not been pending for years. 

Rather his convictions were affirmed by this court in Peterson I. In April 2007, we 

“affirm[ed] the finding of guilt, modif[ied] the sentence, and remand[ed] for correction of 

the sentencing entry.” Id. at ¶ 1. Furthermore, in January 2011, this court specifically 

stated: 

[T]he Ohio Supreme Court in [Fischer, 128 Ohio St.3d 92, 

2010-Ohio-6238, 942 N.E.2d 332] limited its holding in [State v. Bezak, 

114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961] and concluded that 

the defendant is only entitled to a hearing for the proper imposition of 

postrelease control. The defendant is not entitled to be resentenced on the 

entire sentence. Therefore, on remand, the trial court is instructed to 

conduct a resentencing hearing limited to the proper imposition of 

postrelease control. Accordingly, Peterson’s sole assigned error is 

sustained in part. 

{¶12} Moreover, Peterson’s argument is barred by the doctrine of res judicata. 

See State v. Barb, 8th Dist. No. 90768, 2009-Ohio-2576, ¶ 15; State v. McGuire, 8th Dist. 

No. 90768, 2006-Ohio-1330, ¶ 28. Under the doctrine of res judicata, a final judgment 

of conviction bars the convicted defendant 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 by the defendant at the trial that resulted in that 

judgment of conviction or on an appeal from that judgment. State v. Perry, 10 Ohio 

St.2d 175, 180, 226 N.E.2d 104 (1967). It is well established that “any issue that could 
have been raised on direct appeal and was not is res judicata and not subject to review in 

subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 

N.E.2d 824, ¶ 16. 

{¶13} Here, Peterson brought a direct appeal from his convictions, appealed the 

denial of his petition to vacate his sentence, and then appealed the denial of his motion for 

resentencing. In each appeal, he failed to raise the speedy trial argument he now 

presents. 

{¶14} As such, Peterson’s sole assignment of error is barred by res judicata. 

{¶15} Judgment is affirmed. 

It is ordered that appellee recover from 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 

FRANK D. CELEBREZZE, JR., P.J., and 

JAMES J. SWEENEY, J., CONCUR