[Cite as State v. Wagner, 2013-Ohio-3493.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                     :   Hon. William B. Hoffman, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :   Case No. 13-CA-9
                                              :
STEVEN WAGNER                                 :
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Fairfield County Court
                                                  of Common Pleas, Case Nos. 98-CR-65
                                                  & 98-CR-144



JUDGMENT:                                         AFFIRMED




DATE OF JUDGMENT ENTRY:                           August 7, 2013




APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

GREGG MARX                                        STEVEN WAGNER, PRO SE
FAIRFIELD COUNTY PROSECUTOR                       Inmate No. 361523
JOCELYN S. KELLY                                  Chillicothe Correctional Institution
239 W. Main St., Ste. 101                         P.O. Box 5500
Lancaster, OH 43130                               Chillicothe, OH 45601
Fairfield County, Case No.13-CA-9                                                    2




Delaney, J.

      {¶1} Appellant Steven Wagner appeals from the January 15, 2013 judgment

entry of the Fairfield County Court of Common Pleas denying his motion to correct

sentence. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

      {¶2} A statement of the facts underlying appellant's original convictions is

unnecessary to our disposition of this appeal.

      {¶3} In June 1998, appellant was found guilty upon trial by jury of abduction,

felonious assault, and assault in Fairfield County Court of Common Pleas case no. 98

CR 65. On June 10, 1998, he was sentenced to an aggregate prison term of ten years:

three years upon the count of abduction to be served consecutively with seven years

upon the count of felonious assault. The trial court found merged the count of assault.

Appellant filed a direct appeal of his conviction and sentence in State v. Wagner, 5th

Dist. Fairfield No. 98CA42, 1999 WL 436749 (May 24, 1999). Appellant served his

entire imposed sentence as of June 2008.

      {¶4} Appellant remained incarcerated due to a sentence imposed in a separate

case, Fairfield County Court of Common Pleas case no. 98 CR 144. In that case,

appellant was convicted of three counts of intimidation of a victim or witness and one

count of retaliation against the complainant in his original case.      Appellant was

sentenced to an aggregate prison term of nine years in the latter case, to be served

consecutively to the original 10-year term. We affirmed appellant’s second conviction
Fairfield County, Case No.13-CA-9                                                       3

upon his direct appeal in State v. Wagner, 5th Dist. Fairfield No. 99CA23, 2000 WL

1411 (Dec. 23, 1999), appeal not allowed, 88 Ohio St.3d 1480, 727 N.E.2d 131 (2000).

       {¶5} In 2005, appellant filed a petition for post-conviction relief based upon

Blakely; the trial court denied the petition and we affirmed the decision in State v.

Wagner, 5th Dist. Fairfield No. 05-CA-45, 2005-Ohio-5209, appeal not allowed, 108

Ohio St.3d 1440, 2006-Ohio-421, 842 N.E.2d 64. Another attempt at post-conviction

relief was denied in 2006 and affirmed in State v. Wagner, 5th Dist. Fairfield No. 06-CA-

73, 2007-Ohio-3629.

       {¶6} On November 27, 2012, appellant filed a “Motion to Correct Sentence”

under both case numbers, although his arguments addressed only his sentence in the

earlier case, 98-CR-65. The trial court overruled the motion on the bases that the

motion is an untimely petition for post-conviction relief and appellant’s arguments based

upon State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 do not

apply retroactively to his sentence.

       {¶7} Appellant now appeals from the January 15, 2013 entry of the trial court.

       {¶8} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶9} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

IMPOSING MULTIPLE PUNISHMENT (sic) FOR ALLIED OFFENSES.”

       {¶10} “II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

RULING APPELLANT’S MOTION IS TIME BARRED.”
Fairfield County, Case No.13-CA-9                                                        4


                                       ANALYSIS

                                           I, II.

       {¶11} We will address appellant’s two assignments of error together. We find

the trial court correctly overruled appellant’s Motion to Correct Sentence for the

following reasons.

       {¶12} First, we note appellant has failed to provide a transcript of the sentencing

hearing.   As appellee points out, we have previously held that an appellant who

challenges his sentence is required to provide a transcript of the sentencing hearing

because the appellant must demonstrate error by reference to matters within the record.

State v. Boylen, 5th Dist. Stark Nos. 2006 CA 00125 & 20006 CA 00126, 2006-Ohio-

5685, ¶ **.    Without the sentencing transcript, we presume the regularity of the

proceedings below and affirm. See, Knapp v. Edwards Laboratories, 61 Ohio St.2d

197, 199, 400 N.E.2d 384 (1980); App.R. 9(B).

       {¶13} Even setting aside this procedural default, however, the trial court properly

found appellant’s motion is barred by res judicata. Appellant had a prior opportunity to

litigate the allied-offenses claims he sets forth in the instant appeal via a timely direct

appeal from the sentencing hearing and resulting judgment entry; his most recent round

of arguments are therefore barred under the doctrine of res judicata. State v. Perry, 10

Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the doctrine as

follows: “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
Fairfield County, Case No.13-CA-9                                                       5


have been raised by the defendant at the trial which resulted in that judgment of

conviction or on an appeal from that judgment.” Id.

      {¶14} Finally, appellant’s arguments fail substantively.    The Ohio Supreme

Court's holding in Johnson does not apply retroactively. State v. Halliday, 5th Dist.

Delaware No. 11CAA1101104, 2012-Ohio-2376, ¶ 16, citing State v. Parson, 2nd Dist.

Montgomery No. 24641, 2012–Ohio–730. The new judicial ruling may not be applied

retroactively to a conviction that has become final, i.e., where the accused has

exhausted all of his appellate remedies. Id., citing Ali v. State, 104 Ohio St.3d 328,

2004–Ohio–6592.

                                    CONCLUSION

      {¶15} For the foregoing reasons, appellant’s two assignments of error are

overruled and the judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Hoffman, J., concur.



                                       HON. PATRICIA A. DELANEY




                                       HON. W. SCOTT GWIN



                                       HON. WILLIAM B. HOFFMAN
