State v. Cherry - Postconviction Res Judicata - Judgment Affirmed

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April 16, 2026 Get Citation Alerts Download PDF Add Note

State v. Cherry

Ohio Court of Appeals

• Citations: 2026 Ohio 1386
• Docket Number: 26AP-11

• Judges: Edelstein

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (803)

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Syllabus

POSTCONVICTION — RES JUDICATA — APPELLATE REVIEW — JURISDICTION: The trial court did not err in denying a petition for postconviction relief on the basis of res judicata where defendant's postconviction claims challenging the legality of his prison sentence could have been raised and litigated on direct appeal. Further, we do not have jurisdiction to consider defendant's arguments about a decision that is not the subject of this appeal. Judgment affirmed.

Combined Opinion

[Cite as State v. Cherry, 2026-Ohio-1386.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :
No. 26AP-11
v. : (C.P.C. No. 23CR-3214)

Letwan E. Cherry, : (ACCELERATED CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on April 16, 2026

On brief: Shayla D. Favor, Prosecuting Attorney, and
Mark R. Wilson, for appellee.

On brief: Letwan E. Cherry, pro se.

APPEAL from the Franklin County Court of Common Pleas

EDELSTEIN, J.

{¶ 1} Defendant-appellant, Letwan E. Cherry, appeals from the November 20,
2025 judgment of the Franklin County Court of Common Pleas denying his motion to
vacate as void his prison sentence for trafficking in a fentanyl-related compound. For the
reasons that follow, we affirm the judgment below.
I. FACTS AND PROCEDURAL OVERVIEW
{¶ 2} By indictment filed August 4, 2023, plaintiff-appellee, the State of Ohio,
charged Mr. Cherry with trafficking in a fentanyl-related compound that equals or exceeds
50 grams but is less than 100 grams, in violation of R.C. 2925.03, a first-degree felony, with
a firearm specification; possession of a fentanyl-related compound in violation of R.C.
2925.11, a first-degree felony, with a firearm specification; carrying a concealed weapon in
violation of R.C. 2923.12, a fourth-degree felony; and having a weapon while under
No. 26AP-11 2

disability in violation of R.C. 2923.13, a third-degree felony. All counts stemmed from a
June 19, 2023 traffic stop conducted by law enforcement that resulted in the recovery of
“581 fentanyl pills as well as the firearms” following a “probable cause search.” (Apr. 25,
2024 Tr. at 7.) We need not belabor the nature of these offenses, as it is not relevant to the
issue before us in this case.
{¶ 3} On April 25, 2024, while represented by his court-appointed attorney, Mr.
Cherry elected to withdraw his pleas of not guilty and enter into a negotiated plea
agreement with the state. Specifically, the plea agreement provided that in exchange for
pleading guilty to one count of trafficking in a fentanyl-related compound, a first-degree
felony, the state would move to dismiss the remaining counts and all specifications. The
plea form contained a jointly recommended “indefinite” prison sentence of “no less than 6
years and no more than 9 years. Jail time credit of 172 days.” (Apr. 25, 2024 Entry of Guilty
Plea at 1.)
{¶ 4} After accepting Mr. Cherry’s guilty plea, the trial court proceeded
immediately to sentencing. Following remarks from the prosecutor, defense counsel, and
Mr. Cherry, the trial court imposed an indefinite prison sentence of six to nine years, with
zero days of jail-time credit, as memorialized in the May 6, 2024 judgment entry of
conviction and sentence. Mr. Cherry appealed from that judgment, attributing error to the
trial court’s failure to award jail-time credit. On appeal, this court found the trial court
erred in failing to allocate any jail-time credit to his sentence. State v. Cherry, 2025-Ohio-
1152, ¶ 24 (10th Dist.). Accordingly, we reversed and remanded the matter to the trial court
to determine the number of days of jail-time credit attributable in the case below. Id. at
¶ 25. After ordering briefing from the parties on the calculation of jail-time credit, the trial
court issued a nunc pro tunc order awarding 81 days of jail-time credit and correcting the
jail-time credit reflected in the original May 6, 2024 sentencing entry. (Sept. 30, 2025 Nunc
Pro Tunc Order.)
{¶ 5} On November 6, 2025, Mr. Cherry, acting pro se, filed a motion requesting
the trial court vacate his prison sentence on the grounds that it is “void” and was “not
authorized by law,” as described more below. (Nov. 6, 2025 Mot. to Vacate at 6.) On
November 20, 2025, the trial court entered a decision denying that motion.
No. 26AP-11 3

{¶ 6} Mr. Cherry appealed from that decision and now asserts the following five
assignments of error for our review:

[I.] [MR. CHERRY] DEMONSTRATED EXTENSIVE POST-
SENTENCING REHABILITATION, INCLUDING
ENROLLMENT AT SINCLAIR COMMUNITY COLLEGE,
COMPLETION OF VOCATIONAL PROGRAMS, AND ACTIVE
PARTICIPATION IN COMMUNITY AND LANGUAGE-
LEARNING PROGRAMS. UNDER STATE V. REED, 2018-
OHIO-4450, AND STATE V. MANN, 2014-OHIO-3413,
COURTS HAVE DISCRETION TO REDUCE SENTENCES
WHERE REHABILITATION AND EDUCATIONAL
PROGRESS ARE DEMONSTRATED. THE TRIAL COURT
FAILED TO ADDRESS THESE FACTORS, CONSTITUTING
REVERSIBLE ERROR.

[II.] [MR. CHERRY] SUFFERED CHILDHOOD TRAUMA,
SUBSTANCE ABUSE, AND EXPOSURE TO VIOLENCE,
WHICH OHIO COURTS RECOGNIZE AS MITIGATING
FACTORS UNDER R.C. §§ 2929.11-2929.12 AND STATE V.
BARKER, 2018-OHIO-3456. THE COURT’S FAILURE TO
CONSIDER THESE MITIGATING FACTORS IN LIGHT OF
REHABILITATION CONSTITUTES AN ABUSE OF
DISCRETION AND VIOLATES THE STATUTORY
MANDATES TO BALANCE PUNISHMENT WITH
REHABILITATION.

[III.] [MR. CHERRY’S] COUNSEL FAILED TO FILE A
SUPPRESSION MOTION CHALLENGING THE LEGALITY OF
THE TRAFFIC STOP, DESPITE CONCEDING ITS
IMPROPRIETY. COUNSEL’S REFUSAL TO ACT DUE TO
PERSONAL FEAR OF THE PRESIDING JUDGE
CONSTITUTES DEFICIENT PERFORMANCE UNDER
STRICKLAND V. WASHINGTON, SUPRA, AND STATE V.
BRADLEY, 42 OHIO ST.3D 136 (1989). AS THE PLEA WAS
ENTERED WITHOUT FULLY INFORMED CONSENT, THE
DENIAL OF SENTENCE MODIFICATION PERPETUATES
THE CONSTITUTIONAL VIOLATION.

[IV.] WHETHER THE TRIAL COURT IMPOSED OR UPHELD
A DISPROPORTIONATE SENTENCE INCONSISTENT WITH
THE PURPOSES AND PRINCIPLES OF FELONY
SENTENCING UNDER R.C. § 2929.11, GIVEN [MR.
CHERRY’S] LIMITED ROLE AS A PASSENGER, DISPUTED
No. 26AP-11 4

OWNERSHIP OF THE CONTROLLED SUBSTANCES, AND
PARTIAL CULPABILITY, IN VIOLATION OF THE
PROPORTIONALITY STANDARD ARTICULATED IN STATE
V. HAIRSTON, 118 OHIO ST.3D 289 (2008).

[V.] WHETHER THE TRIAL COURT’S REFUSAL TO HOLD A
HEARING OR ISSUE FINDINGS ADDRESSING [MR.
CHERRY’S] REHABILITATION, EDUCATIONAL
ACHIEVEMENTS, AND MITIGATING FACTORS DEPRIVED
[MR. CHERRY] OF DUE PROCESS AND MEANINGFUL
JUDICIAL REVIEW UNDER STATE V. REED, 2018-OHIO-
4450 (10TH DIST.), AND STATE V. MANN, 2014-OHIO-3413
(8TH DIST.).

(Sic passim.) (Appellant’s Brief at 1-2.)

II. ANALYSIS
A. The issues raised in Mr. Cherry’s first, second, third, and fifth
assignments of error were not considered by the trial court in the
November 20, 2025 judgment that is the subject of this appeal.
{¶ 7} We begin our analysis by noting that the issues raised in Mr. Cherry’s first,
second, third, and fifth assignments of error were not raised in his November 6, 2025
motion to vacate. Accordingly, they were not addressed in the trial court’s November 20,
2025 judgment denying his motion, which is the subject of this appeal. (See Jan. 7, 2026
Notice of Appeal (notifying court of his appeal from the November 20, 2025 judgment).)
{¶ 8} After the trial court denied Mr. Cherry’s November 6, 2025 “Motion to Vacate
Sentence as Illegal” on November 20, 2025, Mr. Cherry filed a “Motion to Modify or Reduce
Sentence” on December 4, 2025. In that motion, Mr. Cherry argued his sentence should be
reduced pursuant to R.C. 2929.20, citing various mitigating factors in support. Mr. Cherry
also contended his trial counsel was ineffective in failing to move to suppress evidence
obtained from the traffic stop and vehicle search. On January 7, 2026, the trial court
entered a decision denying Mr. Cherry’s December 4, 2025 motion without a hearing.
{¶ 9} Coincidentally, Mr. Cherry’s notice of appeal from the November 20, 2025
judgment was not filed on the docket by the clerk of the trial court until January 7, 2026.
However, in reviewing the timeliness of Mr. Cherry’s filing of his notice of appeal, we found
documents produced by Mr. Cherry “establish[ed] that he mailed his notice of appeal on
No. 26AP-11 5

December 12, 2025, and that it was delivered to a mailbox in the court complex on
December 16, 2025.” (Jan. 15, 2026 Journal Entry at 1.) Additionally, we received
independent confirmation that the clerk of our court “received [Mr. Cherry’s] original
notice of appeal via interoffice mail from someone in another division of the clerk’s office.”
(Jan. 15, 2026 Journal Entry at 1.) Finding the clerk of the trial court came into possession
of Mr. Cherry’s original notice of appeal “sometime before December 22, 2025,” we
concluded Mr. Cherry’s notice of appeal from the November 20, 2025 judgment was timely
filed. (Emphasis added.) (Jan. 15, 2026 Journal Entry at 2.)
{¶ 10} Significantly, the issues Mr. Cherry raises on appeal about the application of
R.C. 2929.20 (first assignment of error), consideration of mitigating factors (second
assignment of error), ineffectiveness of his trial counsel (third assignment of error), and
denial of his December 4, 2025 motion without a hearing (fifth assignment of error) are
only relevant to Mr. Cherry’s December 4, 2025 motion to modify or reduce sentence.
None of these arguments were presented in his November 6, 2025 motion to vacate. As
such, these assignments of error challenge determinations made through the trial court’s
January 7, 2026 judgment entry—not the November 20, 2025 judgment that is the subject
of this appeal.
{¶ 11} Because the trial court’s judgment denying Mr. Cherry’s December 4, 2025
motion to modify or reduce sentence was not rendered until January 7, 2026—well after we
deemed Mr. Cherry’s notice of appeal from the November 20, 2025 judgment timely filed—
the issues decided by the trial court’s January 7, 2026 judgment entry are not properly
before us in this case. Appellate courts have jurisdiction to review the final orders or
judgments of the inferior courts in their district. Ohio Const., art. IV, § 3(B)(2); R.C.
2505.03. An appeal as of right “shall be taken by filing a notice of appeal with the clerk of
the trial court within the time allowed by [App.R.] 4.” App.R. 3(A). App.R. 3(D) addresses
the contents of the notice of appeal and provides that a notice of appeal “shall designate the
judgment, order or part thereof appealed from.” Absent exceptions not applicable here, we
cannot consider arguments about a judgment that has not been appealed from in
accordance with these rules. Consequently, because the trial court’s January 7, 2026
judgment is not the subject of the notice of appeal filed in this case, we lack jurisdiction to
No. 26AP-11 6

consider the propriety of that decision. Accordingly, we overrule Mr. Cherry’s first, second,
third, and fifth assignments of error.
B. The trial court did not err in denying Mr. Cherry’s November 20,
2025 motion to vacate.
{¶ 12} In his fourth assignment of error, Mr. Cherry takes issue with the trial court’s
decision to deny his postconviction motion to vacate his indefinite prison sentence of six to
nine years “as illegal.” (Nov. 6, 2025 Mot. to Vacate at 2.) Mr. Cherry contends the sentence
imposed by the trial court was unlawful for various reasons—none of which, we note, were
raised in his November 6, 2025 motion that was the subject of the trial court’s November
20, 2025 judgment denying his motion to vacate, now before us on appeal.
{¶ 13} It is well-established in Ohio that any sentence based on an error in a trial
court’s exercise of its sentencing authority is voidable. State v. Henderson, 2020-Ohio-
4784, ¶ 43. As a result, sentencing errors must be challenged on direct appeal from the
judgment of conviction. See, e.g., Henderson at ¶ 1, 27, 43; State v. Harper, 2020-Ohio-
2913, ¶ 4-5. Because “[a] direct appeal is the available legal process to address a trial court’s
alleged sentencing error,” a party’s “failure to challenge a sentencing error on direct appeal
operates as res judicata to any later collateral attack on the judgment.” Henderson at ¶ 90
(Donnelly, J., concurring), citing Harper at ¶ 41 (holding that where defendant failed to
raise alleged post-release control sentencing error on direct appeal, the argument was
barred by doctrine of res judicata).
{¶ 14} In this case, Mr. Cherry only challenged the trial court’s jail-time credit
calculation in his direct appeal. The arguments presented by Mr. Cherry in his November 6,
2025 motion to vacate, discussed more below, challenge a voidable sentence and, thus,
should have been raised on direct appeal. Mr. Cherry cannot use a postconviction motion
to challenge his sentence. Accordingly, we find the trial court did not err in dismissing Mr.
Cherry’s postconviction challenge to the legality of his prison sentence on the basis of res
judicata. Even still, we find no merit in Mr. Cherry’s arguments to support vacating his
prison sentence.
{¶ 15} In his November 6, 2025 motion, Mr. Cherry argued the trial court must
vacate his prison sentence on the grounds that it is “void” and was “not authorized by law”
No. 26AP-11 7

based on the holdings of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v.
United States, 570 U.S. 99 (2013). (Nov. 6, 2025 Mot. to Vacate at 6.) In Apprendi, the
Supreme Court of the United States held that the Sixth Amendment requires “any fact that
increases the penalty for a crime beyond the prescribed statutory maximum,” except for the
fact of a prior conviction, “must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi at 490. And in Alleyne, the court held this principle applies equally to
facts increasing mandatory minimums: “Facts that increase the mandatory minimum
sentence are . . . elements and must be submitted to the jury and found beyond a reasonable
doubt.” Alleyne at 108. But both Apprendi and Alleyne noted that judicial factfinding is
still permitted when a trial court is selecting a sentence within an authorized range. See
Apprendi at 481 (stating trial courts may “exercise discretion -- taking into consideration
various factors relating both to offense and offender -- in imposing a judgment within the
range prescribed by statute” (emphasis in original)); Alleyne at 116 (noting the court has
“long recognized that broad sentencing discretion, informed by judicial factfinding, does
not violate the Sixth Amendment”).
{¶ 16} In his motion to vacate his prison sentence, Mr. Cherry contended the
Supreme Court of Ohio had “applied these constitutional principles” from Apprendi and
Alleyne by striking “down sentencing provisions that required judicial fact-finding before
imposing enhanced terms,” which he claimed improperly occurred here. (Nov. 6, 2025
Mot. to Vacate at 10.) In support, he cited State v. Foster, 2006-Ohio-856, abrogated in
part by Oregon v. Ice, 555 U.S. 160 (2009) (holding the considerations necessary to impose
consecutive sentences on a defendant are the traditional and proper prerogative of the
sentencing judge rather than the jury). In Foster, the court held that portions of Ohio’s
sentencing statutes, including the consecutive-sentence statute, were unconstitutional
because they allowed a judge to increase a maximum sentence based on findings beyond
those determined by a jury. Id. at ¶ 65-67. Even still, Foster recognized that a sentencing
court has “full discretion to impose a prison sentence within the statutory range” and
is not “required to make findings or give their reasons for imposing . . . more than the
minimum sentence[].” (Emphasis added.) Foster at paragraph seven of the syllabus.
No. 26AP-11 8

{¶ 17} Relying on these cases, Mr. Cherry argued the trial court engaged in improper
“judicial fact-finding” when it imposed a prison sentence that exceeded the mandatory
minimum prison term statutorily required for a first-degree felony offense. (See Nov. 6,
2025 Mot. to Vacate at 9-10.) Under the trafficking statute, R.C. 2925.03, the type and
quantity of drugs dictate the degree of the offense and its associated penalty. At the plea
hearing, the state informed the court of Mr. Cherry’s decision to “plead guilty to Count 1 of
the indictment, trafficking in a fentanyl related compound as a felony of the first
degree.” (Tr. at 3.) Following the necessary Crim.R. 11 plea colloquy, Mr. Cherry entered
a guilty plea to that offense. (Tr. at 3-7.) Thus, pursuant to former R.C. 2925.03(C)(9)(e)
(in effect from July 21, 2022 until April 8, 2025), the court was required to “impose as a
mandatory prison term one of the prison terms prescribed for a felony of the first degree.”
{¶ 18} R.C. 2929.14(A)(1)(a) provides, in relevant part, that a prison term for a first-
degree felony offense committed on or after March 22, 2019 “shall be an indefinite prison
term with a stated minimum term selected by the court of three, four, five, six, seven, eight,
nine, ten, or eleven years and a maximum term that is determined pursuant to section
2929.144 of the Revised Code.” Under the Reagan Tokes Law, 2018 Am.Sub.S.B. No. 201
(effective Mar. 22, 2019), which applied here, the trial court was required to impose an
indefinite sentence consisting of a minimum and a maximum prison term. When a
defendant is found guilty of (or, as here, pleads guilty to) an offense subject to this indefinite
sentencing scheme, the trial court has the discretion to sentence him to any minimum
sentence within the appropriate range for that offense. State v. Hacker, 2023-Ohio-2535,
¶ 26-28, citing R.C. 2929.14(A)(1)(a) and (2)(a). No judicial factfinding is required. See,
e.g., Hacker at ¶ 28. And the maximum sentence is calculated based on that minimum
sentence. Hacker at ¶ 28, citing R.C. 2929.144(B)(1).
{¶ 19} Contrary to Mr. Cherry’s contention otherwise, Ohio courts are not required
to make findings or give their reasons for imposing more than the minimum sentence, so
long as the sentence imposed is within the appropriate statutory range. See, e.g., State v.
Jones, 2020-Ohio-6729, ¶ 20; State v. Bryant, 2022-Ohio-1878, ¶ 22. Here, it is
undisputed the trial court imposed a mandatory indefinite prison term of six to nine years,
which falls within the statutory range of prison terms authorized for the offense to which
No. 26AP-11 9

Mr. Cherry pled guilty. As such, all of the arguments made in his November 6, 2025 motion
to vacate his sentence as “illegal” are without merit. (See Nov. 6, 2025 Mot. to Vacate at 2.)
For these reasons, we overrule his fourth assignment of error.

III. CONCLUSION
{¶ 20} Having overruled Mr. Cherry’s five assignments of error, we affirm the
November 20, 2025 judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.
BEATTY BLUNT and DINGUS, JJ., concur.