[Cite as State v. Jones, 2012-Ohio-5672.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Sheila G. Farmer, J.
-vs-                                         :
                                             :
ROBERT E. JONES                              :       Case No. 12CA0061
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 87CR16767



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    December 3, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

EARL L. FROST                                        ROBERT E. JONES, PRO SE
20 South second Street                               P.O. Box 5500
4th Floor                                            Chillicothe, OH 45601
Newark, OH 43055
LIcking County, Case No. 12CA0061                                                       2

Farmer, J.

      {¶1}   On March 17, 1988, appellant, Robert Jones, pled guilty to three counts of

rape with specifications in violation of R.C. 2907.02 and 2941.14.2. By judgment entry

filed same date, the trial court sentenced appellant to an indeterminate term of ten to

twenty-five years on each count, to be served consecutively.

      {¶2}   On March 13, 2012, appellant filed a motion for resentencing, claiming his

three rape convictions should have been merged for sentencing. By judgment entry

filed June 20, 2012, the trial court treated the motion as a motion for postconviction

relief, and denied the motion as untimely and barred by the doctrine of res judicata.

      {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}   "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

APPLYING THE DOCTRINE OF RES JUDICATA."

                                            II

      {¶5}   "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

SENTENCING APPELLANT TO CONTRARIAN LAW."

                                            III

      {¶6}   "WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING

TO MERGE SENTENCES."

                                         I, II, III

      {¶7}   Appellant claims the trial court erred in denying his motion for

resentencing. We disagree.
LIcking County, Case No. 12CA0061                                                        3


       {¶8}   On March 17, 1988, appellant pled guilty to three counts of rape and was

sentenced to an indeterminate term of ten to twenty-five years on each count, to be

served consecutively. Appellant did not appeal his sentence.

       {¶9}   On March 13, 2012, appellant filed a motion for resentencing, claiming his

three rape convictions should have been merged for sentencing. By judgment entry

filed June 20, 2012, the trial court treated the motion as a motion for postconviction

relief pursuant to State v. Schlee, 117 Ohio St.3d 153 (2008), and State v. Williams, 9th

Dist. No. 25879, 2011-Ohio-6141. The trial court denied the motion as untimely and

barred by the doctrine of res judicata.

       {¶10} R.C. 2953.21 governs petition for postconviction relief. Subsection (A)(2)

states the following:



       {¶11} Except as otherwise provided in section 2953.23 of the Revised

       Code, a petition under division (A)(1) of this section shall be filed no later

       than one hundred eighty days after the date on which the trial transcript is

       filed in the court of appeals in the direct appeal of the judgment of

       conviction or adjudication or, if the direct appeal involves a sentence of

       death, the date on which the trial transcript is filed in the supreme court. If

       no appeal is taken, except as otherwise provided in section 2953.23 of the

       Revised Code, the petition shall be filed no later than one hundred eighty

       days after the expiration of the time for filing the appeal.
LIcking County, Case No. 12CA0061                                                       4


      {¶12} Appellant filed his motion almost twenty-four years after the expiration of

the time for filing an appeal, and has not met any of the requirements for untimely filing

under R.C. 2953.23(A). Therefore, the trial court was correct in determining appellant's

motion was untimely.

      {¶13} In addition, appellant's arguments are barred by the doctrine of res

judicata. As stated by the Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175

(1967), paragraphs eight and nine of the syllabus, the doctrine of res judicata is

applicable to petitions for postconviction relief. The Perry court explained the doctrine

at 180-181 as follows:



      {¶14} Under the doctrine of res judicata, a final judgment of conviction

      bars a convicted defendant who was represented by counsel 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 trial, which resulted in that judgment of

      conviction, or on an appeal from that judgment.



      {¶15} In reviewing appellant's motion for resentencing, we find the arguments

therein could have been raised on direct appeal.

      {¶16} Upon review, we find the trial court did not err in denying appellant's

motion for resentencing.

      {¶17} Assignments of Error I, II, and III are denied.
LIcking County, Case No. 12CA0061                                             5


      {¶18} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.


By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                       _s/ Sheila G. Farmer_______________



                                       _s/ Patricia A. Delaney_____________



                                       _s/ John W. Wise_________________

                                                     JUDGES



SGF/db 1120
[Cite as State v. Jones, 2012-Ohio-5672.]


                    IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
ROBERT E. JONES                                :
                                               :
        Defendant-Appellant                    :        CASE NO. 12CA0061




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to

appellant.




                                               _s/ Sheila G. Farmer_______________



                                               _s/ Patricia A. Delaney_____________



                                               _s/ John W. Wise_________________

                                                        JUDGES
