[Cite as State v. Davis, 2012-Ohio-1635.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96908



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                            WILEY DAVIS
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-275129

        BEFORE: Kilbane, J., Rocco, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                     April 12, 2012
APPELLANT

Wiley Davis, Jr., pro se
Inmate No. 263-009
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Katherine Mullin
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Wiley Davis (“Davis”), pro se, appeals from the trial

court’s judgment entry sentencing him for aggravated murder, kidnapping, and

aggravated robbery. Finding no merit to the appeal, we affirm.

      {¶2} The facts of this case were previously set forth by this court in State ex rel.

Davis v. Cuyahoga Cty. Court of Common Pleas, 8th Dist. No. 95777, 2011-Ohio-1966,

in which we stated:

      [I]n May 1992, a jury convicted Davis of two counts of aggravated murder
      with three felony-murder specifications and a three-year firearm
      specification, as well as [four] counts of [kidnapping] and aggravated
      robbery with three-year firearm specifications.              After the jury
      recommended the death penalty for the aggravated murder charges, the trial
      court on June 1, 1992, imposed the death penalty for those charges, and 15
      to 25 years consecutively for the kidnapping and aggravated robbery
      charges, as well as three years for the firearm specifications.

      In Davis v. Mitchell (C.A.6, 2003), 318 F.3d 682, the United States Court of
      Appeals for the Sixth Circuit granted Davis habeas corpus relief by ruling
      that the trial court had given the jury unconstitutional unanimity instructions
      during the sentencing phase of the trial. The Sixth Circuit ordered that a
      writ of habeas corpus should issue unless the State of Ohio conducted a new
      penalty phase proceeding within 180 days of remand.

      In early December 2004, the trial court issued a journal entry which
      provided in pertinent part as follows: “Re-sentencing hearing held
      12/08/2004. Pursuant to the order of federal court, parties agree to 30
      years actual to life plus 3 years actual on firearm specification on Count 1 to
      run consecutive to Counts 3 and 4. All other conditions of original sentence
      remain.” This entry did not reiterate the charges on which Davis was
      convicted, the means of conviction, or the sentences for the other offenses.
      Id. at ¶ 2-4.1

      1Since the trial court issued this entry, Davis has appealed three other times.
 In State v. Davis, 8th Dist. No. 85675, this court dismissed for failure to file a
praecipe. In State v. Davis, 8th Dist. No. 86469, this court denied his motion for a
      {¶3} In State ex rel. Davis, we relied on State v. Baker, 119 Ohio St.3d 197,

2008-Ohio-3330, 893 N.E.2d 163, and found that

      the December 2004 sentencing entry does not comply with Baker and
      Crim.R. 32. It does not state the means of conviction for any of the counts,
      and it specifies the sentence only for [C]ount 1. The [State of Ohio and the
      trial judge] have the clear, legal duty to issue a final judgment of
      conviction, which must be compliant with Baker and Crim.R. 32, and a
      criminal defendant has the clear legal right to such a judgment.

      ***

      Accordingly, [this] court issues the writs of mandamus and procedendo and
      orders the [State of Ohio and the trial judge] to issue a final, appealable
      order in the underlying case which removes the various jurisdictional
      impediments under Crim.R. 32, and Baker. Id. at ¶ 8-9.

      {¶4} Subsequently, on May 20, 2011, the trial court issued a nunc pro tunc entry

for the December 10, 2004 entry, stating:

      By order of the Eighth District Court of Appeals in [State ex rel. Davis,]
      and under authority of State ex rel. Dewine v. Burge, 128 Ohio St.3d,
      2011-Ohio-235, the following sentencing journal entry is issued nunc pro
      tunc as if and for the sentencing journal entry of December 10, 2004:
      On a former day[,] a jury found defendant guilty of aggravated murder[,] in
      violation of R.C. 2903.01(A)[,] with felony murder specifications
      (specifications one, two and three) and a firearm specification (specification
      four) in Count 1; of aggravated murder[,] in violation of 2903.01(B)[,] with
      felony murder specifications (specifications one, two and three) and a
      firearm specification (specification four) in Count 2; of kidnapping[,] in
      violation of R.C. 2905.01[,] with a firearm specification (specification one)
      in Count 3; and of aggravated robbery[,] in violation of R.C. 2911.01[,]
      with a firearm specification (specification one) in Count 4. On a former
      day[,] Count 5 and Count 6 were dismissed without prejudice.



delayed appeal, and in State v. Davis, 8th Dist. No. 87648 this court dismissed the
appeal for failure to file a record.
      On a former day[,] defendant elected to have the aggravated felony
      specifications in the indictment tried by this court. The court found
      defendant guilty of aggravated felony specifications (specifications five and
      six) in Count 1; of aggravated felony specifications (specifications five and
      six) in Count 2; of aggravated felony specifications (specifications two and
      three) in Count 3; and of aggravated felony specifications (specifications
      two and three) in Count 4.

      Resentencing held 12/08/2004 pursuant to the order of the court in [State ex
      rel. Davis] (C.A. 6, 2003), 318 F.3d 682. Parties agree to 30 years actual
      to life on Count 1 (aggravated murder) plus three years actual on the firearm
      specification (specification four) in Count 1 to be served prior to and
      consecutive with the base charge in Count 1. Counts 1 and 2 were merged
      by order of the court in State v. Davis, 76 Ohio St.3d 107, 1996-Ohio-414.

      The felony murder specifications based upon committing or attempting to
      commit rape (specifications three) in Counts 1 and 2 were reversed by order
      of the court in [Davis], 76 Ohio St.3d 107, 1996-Ohio-414.

      Defendant also sentenced to fifteen (15) to twenty-five (25) years on each
      of Counts 3 and 4 to be served concurrently to each other but consecutively
      to the sentence in Count 1. Firearm specifications in Counts 2 through 4 to
      merge at sentencing with firearm specification in Count 1.

      Defendant to receive credit for all time served.

      {¶5} It is from this order that Davis now appeals, raising the following three

assignments of error for review.

                           ASSIGNMENT OF ERROR ONE

      The trial court erred in not vacating Davis’[s] sentence that was not
      imposed and finalized pursuant to the mandate of the federal court violating
      Davis’[s] constitutional right to a speedy trial and his right to due process.

                           ASSIGNMENT OF ERROR TWO

      The trial court erred in not merging Counts 3 and 4 with Counts 1 and 2 as
      they constitute allied offenses of similar import under R.C. 2941.25(A),
      therefore [Davis’s] constitutional right against double jeopardy has been
      violated and his sentence is void.
                            ASSIGNMENT OF ERROR THREE

         Because the indictment(s) filed against [Davis] failed to include all
         elements required to be proven beyond a reasonable doubt to obtain a valid
         finding of guilt as to Counts 1-4 [, Davis] was denied his liberty interest
         established by the Ohio Constitution to have a grand jury determine
         probable cause for each and every element of a charged offense in violation
         of [his] right to due process as guaranteed by the 14th Amendment to the
         United States Constitution.

                                   Imposition of Sentence

         {¶6} In the first assignment of error, Davis claims that his constitutional right to

a speedy trial was violated when the trial court sentenced him outside the 180-day

mandate set forth by the Sixth Circuit Court of Appeals in Davis, 318 F.3d 682. He

claims that he was not resentenced until the nunc pro tunc entry of May 11, 2011, which

was more than six years after the federal court deadline.

         {¶7} In Davis, the Sixth Circuit Court of Appeals mandated that the state of Ohio

conduct “a new penalty proceeding within 180 days after remand.” Id. at 691. Pursuant

to this order, the trial court held a resentencing hearing on December 8, 2004, which was

within the 180-day time period set by the federal court. At the resentencing hearing, the

parties agreed to a sentence of “30 years actual to life plus 3 years actual on firearm

specification on Count 1 to run consecutive to Counts 3 and 4.” The trial court did not

change any other conditions of Davis’s original sentence. By resentencing Davis in

December 2004, we find that the trial court complied with the Sixth Circuit’s mandate in

Davis.

         {¶8} Davis further argues that the trial court violated Crim.R. 32(A) by failing to
sentence him within a reasonable time. This court, however, has previously found that

Crim.R. 32(A) does not apply in cases where an offender must be resentenced. State v.

Huber, 8th Dist. No. 85082, 2005-Ohio-2625, ¶ 8; State v. King, 8th Dist. No. 95233,

2011-Ohio-1079, ¶ 7.     “‘This logic, as it relates to Crim.R. 32(A), recognizes the

distinction between a trial court refusing to sentence an offender and a trial court

improperly sentencing an offender.’”    King at ¶ 7, quoting State v. Spears, 9th Dist. No.

24953, 2010-Ohio-1965, ¶ 19. Again, in the instant case, the trial court imposed Davis’s

sentence within 180 days from the federal court’s mandate. As such, there was no delay.

      {¶9} Accordingly, the first assignment of error is overruled.

                                         Merger

      {¶10} In the second assignment of error, Davis challenges his sentence, claiming

that his convictions for kidnapping and aggravated robbery (Counts 3 and 4) should have

merged with his convictions for aggravated murder (Counts 1 and 2).

      {¶11} However, 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 that resulted in that judgment of

conviction or on an appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 180,

226 N.E.2d 104 (1967). It is well established that res judicata bars the consideration of

issues that could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176,

2006-Ohio-1245, 846 N.E.2d 824, ¶ 17.
       {¶12} As we recently stated in State v. Flagg, 8th Dist. Nos. 95958 and 95986,

2011-Ohio-5386:

       This court has consistently held that “the time to challenge a conviction
       based on allied offenses is through a direct appeal — not at a resentencing.”
        State v. Poole, Cuyahoga App. No. 94759, 2011-Ohio-716, at ¶ 13; State v.
       Padgett, Cuyahoga App. No. 95065, 2011-Ohio-1927, at ¶ 8; State v.
       Ballou, Cuyahoga App. No. 95733, 2011-Ohio-2925.

       ‘The issue of whether two offenses constitute allied offenses of similar
       import subject to merger has been recognized as an issue that is required to
       be raised on direct appeal from a conviction, or else res judicata will bar a
       subsequent attempt to raise the issue.’ State v. Goldsmith, Cuyahoga App.
       No. 95073, 2011-Ohio-840, at ¶ 6, citing State v. Abuhilwa, Summit App.
       No. 25300, 2010-Ohio-5997; State v. Rodriquez, Cuyahoga App. No.
       95055, 2010-Ohio-4902.

       In the present instance, the proper avenue for appellant’s merger challenge

       would have been in his earlier appeal. Therefore, we find appellant’s first

       assignment of error to be res judicata.   Id. at ¶ 7-9.

       {¶13} Likewise, in the instant case, Davis brought a direct appeal from his

convictions, appealed the denial of petition for postconviction relief, and appealed to the

Ohio Supreme Court and the Sixth Circuit Court of Appeals arguing various errors, but

failed to raise the allied offense argument he now presents. The proper avenue for

Davis’s merger challenge would have been in his earlier appeals.

       {¶14} Thus, we find that Davis’s second assignment of error is barred by res

judicata.

                                        Indictment

       {¶15} In the third assignment of error, Davis argues that the indictment failed to
set forth essential elements of the offenses for which he was convicted.            Davis’s

argument, however, is also barred by res judicata.

       {¶16} As previously stated, under the doctrine of res judicata, a final judgment of

conviction bars the convicted defendant from raising and litigating in any proceeding any

defense or any claimed lack of due process that was raised or could have been raised by

the defendant at the trial that resulted in that judgment of conviction or on an appeal from

that judgment. Perry, 10 Ohio St.2d at 180, 226 N.E.2d 104. This is Davis’s sixth

appeal, but this is the first time he raises the indictment issue he now presents. The

proper avenue for Davis’s challenge would have been in his earlier appeals.

       {¶17} Therefore, we find that Davis’s third assignment of error is barred by res

judicata.

       {¶18} Accordingly, judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.



       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE
KENNETH A. ROCCO, P.J., and
JAMES J. SWEENEY, J., CONCUR
