[Cite as State v. White, 2012-Ohio-1490.]




                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. John W. Wise, J.
-vs-                                         :
                                             :
DAVID R. WHITE, SR.                          :       Case No. CT11-0051
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case. No. CR2007-0032



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    March 26, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

ROBERT L. SMITH                                      DAVID WHITE, SR., PRO SE
27 North Fifth Street                                P.O. Box 7010
Zanesville, OH 43701                                 Chillicothe, OH 45601



Farmer, J.

       {¶1}     On January 24, 2007, the Muskingum County Grand Jury indicted

appellant, David White, Sr., on three counts of rape in violation of R.C. 2907.02 and

three counts of gross sexual imposition in violation of R.C. 2907.05. Said charges

arose from incidents involving a seven year old child.

       {¶2}     On March 5, 2007, appellant pled guilty to one of the rape counts. The

remaining charges were nolled. By entry filed April 5, 2007, the trial court sentenced

appellant to life in prison with parole eligibility after ten years. Appellant did not appeal

his sentence.

       {¶3}     Appellant was resentenced on September 8, 2010 to include a term of

postrelease control. Appellant filed an appeal challenging the way the hearing was

conducted, and this court affirmed the trial court's sentence. State v. White, Muskingum

App. No. CT-2010-0053, 2011-Ohio-2350.

       {¶4}     On November 9, 2010, appellant filed a motion to vacate a void sentence,

arguing the "enhanced term of life is unauthorized by law." By entry filed September 12,

2011, the trial court denied the motion.

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

consideration. Assignment of error is as follows:

                                              I

       {¶6}     "THE TRIAL COURT ERRED WHEN IT SENTENCED DEFENDANT TO

A LIFE SENTENCE CONTRARY TO LAW."
                                             I

       {¶7}   Appellant claims the trial court erred in sentencing him to life in prison with

parole eligibility after ten years. We disagree.

       {¶8}   Appellant was originally sentenced on April 5, 2007. He never filed a

direct appeal.

       {¶9}   Appellant was resentenced on September 8, 2010 to include a term of

postrelease control.     Appellant appealed, challenging the way the hearing was

conducted, and this court affirmed the trial court's sentence. State v. White, Muskingum

App. No. CT-2010-0053, 2011-Ohio-2350.

       {¶10} On November 9, 2010, appellant filed a postconviction motion to vacate

his void sentence, arguing the "enhanced term of life is unauthorized by law."

       {¶11} As stated by the Supreme Court of Ohio in State v. Perry (1967), 10 Ohio

St.2d 175, 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:

       {¶12} "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."
       {¶13} Appellant never challenged the length of his sentence which could have

been raised on direct appeal.

       {¶14} On March 5, 2007, appellant pled guilty to rape in violation of R.C.

2907.02(A)(1)(b) for an offense committed in 2000 involving a seven year old. Pursuant

to R.C. 2907.02(B) in effect at the time of sentencing, a defendant found guilty of R.C.

2907.02(A)(1)(b) "shall be sentenced to a prison term or term of life imprisonment

pursuant to section 2971.03 of the Revised Code."           However, R.C. 2941.148(A)(1)

indicates the application of R.C. Chapter 2971 is precluded from offenses committed

prior to January 2, 2007.       Therefore, the applicable version of R.C. 2907.02 in

appellant's case was the one effective June 13, 2002. Subsection (B) provided in part,

"if the victim under division (A)(1)(b) of this section is less than ten years of age,

whoever violates division (A(1)(b) of this section shall be imprisoned for life."

       {¶15} Appellant's life sentence was not unauthorized by law.

       {¶16} The sole assignment of error is denied.

       {¶17} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.

                                              s/ Sheila G. Farmer_____________



                                              s/ William B. Hoffman_____________
                                        s/ John W. Wise     _____________

       SGF/sg 314                             JUDGES

          IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :         JUDGMENT ENTRY
                                        :
DAVID R. WHITE, SR.                     :
                                        :
       Defendant-Appellant              :         CASE NO. CT11-0051




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

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

to appellant.




                                        s/ Sheila G. Farmer_____________



                                        s/ William B. Hoffman_____________



                                        s/ John W. Wise_____________
JUDGES
