[Cite as State v. Turrentine, 2010-Ohio-4826.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-10-40

        v.

JAMES L. TURRENTINE, JR.,                                  OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR 2003 0372

                                      Judgment Affirmed

                            Date of Decision:    October 4, 2010




APPEARANCES:

        James L. Turrentine, Jr., Appellant

        Jana E. Emerick for Appellee
Case No. 1-10-40


WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant James L. Turrentine, Jr. (“Turrentine”) brings

this appeal from the judgment of the Court of Common Pleas of Allen County

denying his motion to modify his prison sentence. For the reasons set forth below,

the judgment is affirmed.

       {¶2} On September 19, 2003, Turrentine entered a negotiated plea of

guilty to two counts of rape and one count of gross sexual imposition. As part of

the plea agreement, the parties stipulated to an agreed sentence recommendation of

six years in prison for each count of rape and three years in prison for the gross

sexual imposition, with the sentences to run consecutively.         The trial court

accepted the guilty plea and sentenced Turrentine to the recommended sentence

for a total sentence of fifteen years in prison.

       {¶3} On January 15, 2008, Turrentine filed a motion to modify his

sentence, alleging that his sentence was contrary to law because he was given

more than the minimum sentence. The trial court overruled the motion on January

16, 2008. Turrentine then appealed that judgment to this court and was assigned

case number 1-08-18. On appeal, Turrentine argued that the trial court erred in

sentencing him to consecutive sentences for allied offenses, failed to require a pre-

sentence investigation, and erred in sentencing him to more than the minimum

sentence.    This court overruled the assignments of error pursuant to R.C.



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2953.08(D)(1), which prevents review of a sentence that is jointly recommended

by the State and the defendant and is imposed by the trial court.          State v.

Turrentine, 3d Dist. No. 1-08-18, 2008-Ohio-3231 (“Turrentine I”). This court

also held that a pre-sentence investigation was not mandated, so the trial court did

not err by failing to order one. Id.

       {¶4} On April 21, 2010, Turrentine again filed a motion to modify his

sentence, alleging that his original sentence was invalid because they were allied

offenses of similar import which should have merged upon sentencing. The trial

court overruled the motion on April 23, 2010.        Turrentine appeals from this

judgment and raises the following assignments of error.

                             First Assignment of Error

       The trial court erred by failing to engage on the record, the
       analysis of the offenses charged as required by R.C. 2941.25 to
       determine allied offenses of similar import.

                            Second Assignment of Error

       The trial court erred by failing in its mandatory duty to merge
       allied offenses of similar import, prior to sentencing
       [Turrentine].

                            Third Assignment of Error

       The trial court erred by sentencing [Turrentine] consecutively
       for allied offense (sic) of similar import.




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                            Fourth Assignment of Error

       The trial court abused its power and discretion, by failing to
       adhere to its own rulings on recidivism unlikely factors, as
       stated in the judgment entry or sentence, and imposed the
       sentences consecutively.

                             Fifth Assignment of Error

       [Turrentine’s] trial counsel failed to object to the imposition of
       consecutive sentences for allied offenses of similar import, and
       failed to move the trial court to merge the allied offenses
       thereby creating deficient performances and ineffective
       assistance of counsel.

       {¶5} This court notes that all five assignments of error are based upon the

sentence imposed back in 2003. No direct appeal was taken from that sentence.

Since the underlying motion and the appeal were filed after the time for a direct

appeal had passed, claims a denial of rights, and seeks to void the judgment of

sentence, the motion and the appeal are based upon a petition for post-conviction

relief. State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131. Thus, we

will treat the motion to modify his sentence as a petition for post-conviction relief.

State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586, ¶11.

       {¶6} A petition for post-conviction relief must “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 * * *.” R.C. 2953.21(A)(2). However, if no direct

appeal is taken, the petition must be filed within one hundred eighty days after the

expiration of the time for the filing of the direct appeal. Id. If a defendant fails to


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file a timely petition for post-conviction relief, the trial court may not consider the

motion unless one of the two exceptions is met.           R.C. 2953.23(A).      These

exceptions are 1) that there is a newly recognized federal or state right which

would have precluded a finding of guilty or 2) DNA testing is now available

which will establish actual innocence of the felony charged. Id. at (A)(2).

       {¶7} In this case, Turrentine did not file his motion for several years, and

thus did not file within the required time frame for a motion for post-conviction

relief. Turrentine does not allege any new right or evidence. Instead, his only

complaint is that his sentence was improperly imposed. This does not meet either

of the exceptions for an untimely petition. As a matter of law, the trial court

lacked jurisdiction to consider Turrentine’s motion because it was untimely. See

Holdcroft, supra.

       {¶8} Even if Turrentine’s motion was timely filed, the assignments of

error would be barred by the doctrine of res judicata.

       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 which resulted in that judgment of conviction or on an
       appeal from that judgment.        As stated in 18 American
       Jurisprudence 2d 505, Section 33:

       ‘Just as the petitioner’s knowledge, at the time of trial, or the
       error of fact relied upon, or his fault in not discovering such
       error previously, will bar relief under a common-law writ of


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       error coram nobis, such factors will also bar a comparable
       statutory (postconviction) remedy.’

State v. Perry (1967), 10 Ohio St.2d 175, 180-81, 226 N.E.2d 104. This doctrine

includes all issues that either were raised or could have been raised on direct

appeal. Grava v. Parkman (1995), 73 Ohio St.3d 379, 653 N.E.2d 226.

       {¶9} In this appeal, all of the issues raised by Turrentine could have been

and should have been raised on direct appeal. They were not. Thus, they are

barred by the doctrine of res judicata. In addition, the assignments of error

dealing with allied offenses of similar import were previously addressed by this

court in Turrentine I. Turrentine did not appeal that ruling to the Ohio Supreme

Court. Therefore, that issue is the law of the case and need not be addressed

again. For these reasons, all five assignments of error are overruled.

       {¶10} The judgment of the Court of Common Pleas of Allen County is

affirmed.

                                                               Judgment Affirmed

ROGERS and PRESTON, J.J., concur.

/jlr




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