[Cite as State v. Millette, 2013-Ohio-1331.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
STATE OF OHIO                                   :   W. Scott Gwin, P. J.
                                                :   John W. Wise, J.
                          Plaintiff-Appellee    :   Patricia A. Delaney, J.
                                                :
-vs-                                            :   Case No. 12-CA-0074
                                                :
                                                :
ROGER MILLETTE                                  :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                             Criminal Appeal from Licking County
                                                     Court of Common Pleas Case No.
                                                     2004-CR-00032

JUDGMENT:                                            Affirmed



DATE OF JUDGMENT ENTRY:                              April 2, 2013



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KENNETH W. OSWALT                                    ROGER MILLETTE
Licking County Prosecutor                            HCI, ID. # AA487-908
20 South Second Street, 4th Floor                    P.O. Box 59
Newark, Ohio 43055                                   Nelsonville, Ohio 45764
[Cite as State v. Millette, 2013-Ohio-1331.]


Wise, J.

        {¶1}     Appellant, Roger Millette, appeals a judgment of the Licking County

Common Pleas Court overruling his “Motion to Correct Illegal Sentence.” Appellee is

the State of Ohio.

        {¶2}     In 2005, appellant was indicted on charges of aggravated robbery,

aggravated burglary, kidnapping, attempted rape, intimidation of a witness and two

counts of gross sexual imposition following an incident where he broke into the home of

a pregnant woman to rob her, threatened her with a knife, made her strip nearly naked

and tied her to a bed. In exchange for dismissal of the attempted rape charge, appellant

pleaded guilty to the remaining charges. He was sentenced to 8 years incarceration for

aggravated burglary, 8 years for aggravated robbery, 8 years for kidnapping, 3 years for

intimidation and 3 years for each count of gross sexual imposition. All counts were to

run consecutively for an aggregate term of 33 years.

        {¶3}     On January 10, 2011, appellant filed a motion seeking to correct his

sentence for failure to impose postrelease control. The State responded by requesting

that appellant be resentenced pursuant to State v. Fischer, 128 Ohio St.3d 92, 942

N.E.2d 332, 2010–Ohio–6238. Resentencing was scheduled for February 16, 2011 and

counsel was appointed to represent appellant at resentencing.

        {¶4}     On February 15, 2011, the day before the resentencing hearing, appellant

filed a motion to withdraw his guilty plea on the basis that postrelease control was not

validly imposed, and a motion to dismiss the resentencing proceedings on the grounds

that his sentence is now res judicata.
Licking County App. Case No. 12-CA-0074                                                    3


         {¶5}   The case proceeded to a resentencing hearing in the Licking County

Common Pleas Court. The court overruled appellant's motion to withdraw his plea and

his motion to dismiss the proceedings. Appellant orally argued that the convictions for

robbery, burglary, kidnapping and intimidation of a witness should merge as allied

offenses of similar import. The court sentenced appellant to the same sentence

originally imposed in this case with the addition of a mandatory term of five years

postrelease control on all counts other than intimidation of a witness, on which the court

imposed three years of postrelease control. He appealed from the resentencing entry,

arguing that his convictions were allied offenses of similar import. We affirmed, finding

the issue to be res judicata. State v. Millette, 5th Dist. No. 11-CA-23, 2011-Ohio-6357.

         {¶6}   Appellant then filed a Motion to Correct Illegal Sentence, arguing again

that his offenses were allied offenses of similar import. The trial court treated the motion

as an untimely petition for postconviction relief pursuant to R.C. 2953.21(A)(2), and

overruled the motion on the basis of res judicata.

         {¶7}   Appellant assigns a single error on appeal:

         {¶8}   “MR. MILLETTE IS BEING ILLEGALLY IMPRISONED FOR ALLIED

OFFENSES OF SIMILAR IMPORT AND HAS BEEN DENIED DUE PROCESS BY THE

TRIAL COURT’S FAILURE TO EVEN CONSIDER THE ILLEGALITY OF HIS

SENTENCE.”

         {¶9}   Appellant does not assign as error the trial court’s decision to treat his

motion as a petition for postconviction relief.       As noted by the trial court, R.C.

2953.21(A)(2) governs the time within which a petition for postconviction relief must be

filed:
Licking County App. Case No. 12-CA-0074                                                    4


       {¶10} “(2) 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.”

       {¶11} The trial transcript was filed in this Court on March 29, 2011, and appellant

did not file the instant petition until April 18, 2012. Appellant does not claim error in the

court’s finding that his motion was an untimely motion for postconviction relief.

       {¶12} Further, the issue appellant seeks to raise is res judicata, as the issue

could have been raised on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967), State v. Nichols, 11 Ohio St. 3d 40, 463 N.E.2d 375 (1984).
Licking County App. Case No. 12-CA-0074                                     5


      {¶13} The assignment of error is overruled.

      {¶14} The judgment of the Licking County Common Pleas Court is affirmed.

Costs to appellant.




By: Wise, J.

Gwin, P.J. and

Delaney, J. concur

                                                ______________________________



                                                ______________________________



                                                ______________________________

                                                         JUDGES




JWW/r0308
[Cite as State v. Millette, 2013-Ohio-1331.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
                              Plaintiff-Appellee   :
                                                   :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
ROGER MILLETTE                                     :
                                                   :
                         Defendant-Appellant       :       CASE NO. 12-CA-0074




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

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

appellant.




                                                       _________________________________


                                                       _________________________________


                                                       _________________________________

                                                                    JUDGES
