[Cite as Ohio v. Nash, 2011-Ohio-6548.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                       Hon. John W. Wise, J.
                                                 Hon. Julie A. Edwards, J.
v.
                                                 Case No. 2011CA00146
SHAWN L. NASH

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Stark County Court of
                                              Common Pleas, Case No. 2008CR2161


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                       December 12, 2011


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


JOHN D. FERRERO,                              GEORGE URBAN
PROSECUTING ATTORNEY,                         116 Cleveland Ave. NW
STARK COUNTY, OHIO                            Suite 808
                                              Canton, Ohio 44702
By: RENEE M. WATSON
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2011CA00146                                                         2

Hoffman, P.J.


       {¶ 1} Defendant-appellant Shawn L. Nash appeals the June 24, 2011 Judgment

Entry entered by the Stark County Court of Common Pleas, which denied his motion for

resentencing. Plaintiff-appellee is the State of Ohio.

                                    STATEMENT OF CASE1

       {¶ 2} On December 26, 2008, the Stark County Grand Jury indicted Appellant

on three counts of trafficking in cocaine, in violation of R.C. 2925.03(A)(1)(C)(4)(d),

felonies of the third degree; one count of possession of cocaine, in violation of R.C.

2925.11(A)(C)(4)(c), a felony of the third degree; and two counts of possession of

cocaine, in violation of R.C. 2925.11(A)(C)(4)(b), felonies of the fourth degree. The trial

court issued a warrant for Appellant’s arrest, which was returned on February 12, 2010.

Appellant appeared before the trial court for arraignment on February 19, 2010, and

entered a plea of not guilty to all charges. Upon motion of Appellee, the trial court

permitted Appellee to amend Count One of the Indictment from trafficking in cocaine, a

felony of the third degree to trafficking in cocaine, a felony of the fifth degree; and Count

Two from possession of cocaine, a felony of the third degree, to possession of cocaine,

a felony of the fifth degree.

       {¶ 3} Appellant appeared before the trial court on March 29, 2010, and entered

a plea of guilty to the amended indictment. The trial court found Appellant guilty, and

deferred the imposition of sentence pending a presentence investigation by the

probation department.



1
  A Statement of the Facts underlying Appellant’s conviction is not necessary for our
disposition of this appeal.
Stark County, Case No. 2011CA00146                                                      3


      {¶ 4} Appellant appeared before the trial court for sentencing on April 28, 2010.

The trial court sentenced Appellant to three years of community control subject to the

general supervision and control of the court. The trial court reserved the imposition of

an eighty-three month prison term in the event Appellant failed to comply with the terms

and conditions of his community control. Appellant did not take a direct appeal from the

sentence.

      {¶ 5} On May 24, 2010, Appellant’s probation officer filed a motion to revoke

probation or modify former order. Appellant had been charged with OVI in Wayne

County on May 9, 2010, and failed to report the arrest to his probation officer.

Additionally, Appellant failed to report to the probation officer on May 12, 2010, and May

24, 2010. Finally, Appellant violated curfew on May 23, 2010. Via Journal Entry filed

November 24, 2010, the trial court revoked Appellant’s community control, and

sentenced him to an aggregate term of imprisonment of eighty-three months. The trial

court filed a Judgment Entry on December 2, 2010, memorializing the same. Appellant

did not take a direct appeal from the revocation of his community control.

      {¶ 6} On June 23, 2011, Appellant filed a pro se motion for resentencing,

arguing his crimes were allied offenses of similar import.        The trial court denied

Appellant’s motion via Judgment Entry filed June 24, 2011. The trial court found the

elements required for the offenses of trafficking in cocaine and possession of cocaine

were different. The trial court also found each of the three trafficking offenses and each

of the three possession offenses were committed on different days, i.e., September 25,

2008, February 27, 2008, and October 30, 2008.
Stark County, Case No. 2011CA00146                                                        4


        {¶ 7} It is from this Judgment Entry Appellant appeals, raising its sole

assignment of error:

        {¶ 8} “I. THE TRIAL COURT ERRD WHEN IT DENIED APPELLANT’S

MOTION FOR RESENTENCING.”

        {¶ 9} This case comes to us on the accelerated calendar. App. R. 11. 1, which

governs accelerated calendar cases, provides in pertinent part:

        {¶ 10} “(E) Determination and judgment on appeal.

        {¶ 11} “The appeal will be determined as provided by App.R. 11.1. It shall be

sufficient compliance with App.R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.

        {¶ 12} “The decision may be by judgment entry in which case it will not be

published in any form.”

        {¶ 13} This appeal shall be considered in accordance with the aforementioned

rule.

                                                 I

        {¶ 14} In his sole assignment of error, Appellant maintains the trial court erred in

denying his motion for resentencing.

        {¶ 15} We find Appellant’s allied offenses claim is barred by the doctrine of res

judicata. “[A] convicted defendant is precluded under the doctrine of res judicata 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 appeal

from that judgment.” State v. Szefcyk (1996), 77 Ohio St.3d 93, 96, 671 N.E.2d 233.
Stark County, Case No. 2011CA00146                                                      5


       {¶ 16} Appellant was convicted and sentenced on May 4, 2010. Appellant did

not take a direct appeal from his original sentence. On December 2, 2010, Appellant’s

community control was revoked and Appellant was sentenced to eighty-three months in

prison. Again, Appellant did not take a direct appeal challenging either the revocation of

his community control and/or the imposition of his sentence.       We find Appellant is

barred from raising this argument at this juncture.

       {¶ 17} Appellant’s sole assignment of error is overruled.

       {¶ 18} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ John W. Wise _____________________
                                             HON. JOHN W. WISE


                                             s/ Julie A. Edwards___________________
                                             HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00146                                              6


            IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                       FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
      Plaintiff-Appellee                 :
                                         :
v.                                       :         JUDGMENT ENTRY
                                         :
SHAWN L. NASH                            :
                                         :
      Defendant-Appellant                :         Case No. 2011CA00146


      For the reason stated in our accompanying Opinion, the judgment of the Stark

County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                         s/ William B. Hoffman _________________
                                         HON. WILLIAM B. HOFFMAN


                                         s/ John W. Wise______________________
                                         HON. JOHN W. WISE


                                         s/ Julie A. Edwards ___________________
                                         HON. JULIE A. EDWARDS
