[Cite as State v. Rachel, 2014-Ohio-2891.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2013-T-0123
        - vs -                                  :

DANIEL J. RACHEL,                               :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 06 CR 755.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Daniel J. Rachel, pro se, PID: A530216, Marion Correctional Institution, P.O. Box 57,
Marion, OH 43302 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Daniel J. Rachel, appeals the judgment of the Trumbull County

Court of Common Pleas denying his pro se motion to correct sentence. For the reasons

that follow, the judgment is affirmed.

        {¶2}     Appellant’s indictment stemmed from a home invasion on October 26,

2006, whereby appellant and another man entered the home of a 72-year-old woman

without permission. When the elderly woman attempted to run for her safety, appellant
and the other man grabbed her, duct-taped her, and demanded money. The elderly

woman’s son caught the intruders in the act and stabbed the offenders with a pocket

knife; appellant’s co-defendant struck the son in the head with a metal object.

Meanwhile, the elderly woman was able to free herself from the duct tape and then

chased appellant’s co-defendant with a broom. The two men fled. The two victims

suffered broken bones in the attack.

      {¶3}   Appellant was indicted as follows. Counts 1 and 2: felonious assault in

violation of R.C. 2903.11(A)(2)&(D), felonies of the second degree; Count 3: aggravated

burglary, in violation of R.C. 2911.11(A)(1)&(B), a felony of the first degree; Count 4:

kidnapping, in violation of R.C. 2905.01(A)(2)&(C), a felony of the first degree; and

Count 5: aggravated robbery, in violation of R.C. 2911.01(A)(2)&(C), a felony of the first

degree.

      {¶4}   Appellant entered a plea of guilty to the indictment on May 17, 2007, and

subsequently waived a pre-sentence investigation.       Appellant was sentenced to six

years in prison on Counts 1, 2, and 3 to be served concurrently with each other; five

years in prison on Count 4 to be served consecutively to the first three counts; and five

years in prison on Count 5 to be served consecutively to the prison term imposed on

Count 4—for an aggregate prison term of 16 years.

      {¶5}   In 2011, appellant filed a motion for leave to file a delayed appeal, which

was denied by this court. In our decision, we stated that appellant was “not diligent in

taking the proper steps to protect his own rights,” given that “over four years had

elapsed between the time that appellant was sentenced until the filing of his motion for

delayed appeal and notice of appeal[.]” State v. Rachel, 11th Dist. Trumbull No. 2011-




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T-0068, 2011-Ohio-6694. Appellant thereafter filed a pro se “motion to correct sentence

not authorized by law,” which was denied by the trial court, and is the subject of this

appeal.

      {¶6}   Appellant filed a notice of appeal and assigns the following error:

             The Trial Court abused its discretion when it committed plain error
             by failing to complete its determination of allied offenses and merge
             Mr. Rachel’s facially evident counts of allied offenses, after merging
             some of the allied counts, in violation of Defendant’s rights to
             double jeopardy protection, due process and equal protection
             pursuant to; R.C. 2941.25; Ohio Constitution, Article I, §10 & §16;
             Fifth, Sixth and Fourteenth Amendments to the United States
             Constitution.

      {¶7}   On appeal, appellant contends the trial court erred in failing to merge

Count 4, kidnapping, and Count 5, aggravated robbery. Appellant argues that the trial

court failed to inquire or address whether Counts 4 and 5 were allied offenses.

      {¶8}   R.C. 2941.25(A) codifies the doctrine of merger, explaining that, “[w]here

the same conduct by defendant can be construed to constitute two or more allied

offenses of similar import, the indictment or information may contain counts for all such

offenses, but the defendant may be convicted of only one.”

      {¶9}   R.C. 2941.25(B) provides the converse:

             Where the defendant’s conduct constitutes two or more offenses of
             dissimilar import, or where his conduct results in two or more
             offenses of the same or similar kind committed separately or with a
             separate animus as to each, the indictment or information may
             contain counts for all such offenses, and the defendant may be
             convicted of all of them.

      {¶10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio

Supreme Court set forth the current standard for determining whether merger is

apposite, holding that, “[w]hen determining whether two offenses are allied offenses of




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similar import subject to merger under R.C. 2941.25, the conduct of the accused must

be considered.” Id. at syllabus. In making such a determination, a court must consider

whether it is possible to commit the offenses by the same conduct and, if so, whether

the offenses were, in fact, committed by the same conduct: i.e., “‘a single act committed

with a single state of mind.’” Id. at ¶49, quoting State v. Brown, 119 Ohio St.3d 447,

2008-Ohio-4569, ¶50 (Lanzinger, J., concurring in judgment only). If both questions are

answered affirmatively, merger is appropriate. The results of the analysis will vary by

case, as the examination of the defendant’s conduct is necessarily non-formulaic and

inherently subjective. Id. at ¶52.

       {¶11} Although on appeal appellant does not cite to Johnson, he is trying to avail

himself of a retroactive application of the analysis espoused in Johnson. However,

appellant was sentenced prior to the Supreme Court of Ohio’s decision in Johnson. As

the Second Appellate District explained, an appellant seeking to challenge his pre-

Johnson sentencing on the grounds of merger cannot rely on Johnson, “because ‘[a]

new judicial ruling may be applied only to cases that are pending on the announcement

date. * * * The new judicial ruling may not be applied retroactively to a conviction that

has become final, i.e. where the accused has exhausted all of his appellate remedies.’”

State v. Parson, 2d Dist. Montgomery No. 24641, 2012-Ohio-730, ¶11, quoting Ali v.

State, 104 Ohio St.3d 328, 2004-Ohio-6592, ¶6.

       {¶12} Additionally, this court has continually held that when an appellant does

not raise the issue of allied offenses of similar import in a timely direct appeal, the

challenge is barred by the doctrine of res judicata. State v. Dukes, 11th Dist. Portage

Nos. 2011-P-0098 & 2011-P-0099, 2012-Ohio-3033, ¶9; State v. Cioffi, 11th Dist.




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Trumbull Nos. 2011-T-0072 & 2011-T-0073, 2012-Ohio-299, ¶14; State v. Britta, 11th

Dist. Trumbull No. 2011-L-041, 2011-Ohio-6096, ¶17-18; State v. Hobbs, 11th Dist.

Lake No. 2010-L-064, 2011-Ohio-1298, ¶43. “[A]ny issues that were raised or could

have been raised by a defendant at the trial court level or on direct appeal are res

judicata and not subject to review in subsequent proceedings.” State v. Lintz, 11th Dist.

Lake No. 2010-L-067, 2011-Ohio-6511, ¶36, citing State v. Perry, 10 Ohio St.2d 175

(1967), paragraph nine of the syllabus. As appellant did not raise the issue of merger in

a timely direct appeal, the argument is barred by res judicata.

       {¶13} In his appellate brief, appellant also argues that his trial counsel was

ineffective, as his trial counsel “induced” him to accept a plea agreement by promising

him a five- to eight-year term of incarceration. To bolster his ineffective assistance of

counsel argument, appellant attached to his appellate brief a letter, dehors the record,

penned by his trial counsel to the prosecuting attorney stating that appellant “would be

willing to plead guilty in exchange for a sentence of five to eight years.”

       {¶14} “A reviewing court cannot add matter to the record before it, which was not

a part of the trial court proceedings, and then decide the appeal on the basis of the new

matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the syllabus.

Even if this court could consider this letter attached to appellant’s brief, it does not

support appellant’s argument on appeal that he was induced to enter a plea of guilty.

       {¶15} The record reflects a colloquy between appellant and the trial court

whereby appellant stated that despite not receiving a lesser term of imprisonment, he

was satisfied with his trial counsel. The record indicates that appellant was aware that

in exchange for a guilty plea, he would receive a 16-year term of incarceration.




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Appellant signed the “Finding of Guilty Plea to the Indictment” which enumerated the

potential sentences for felonies of the first and second degree; the potential penalties

were also espoused from the bench.          Further, the written agreement, signed by

appellant, explicitly states that appellant understood that the trial court would impose

consecutive sentences; that the agreement reflected the entire agreement between

appellant and the state of Ohio; and that no promises or representation had been made

to appellant. The written agreement also explicitly states the following:

              State and Defendant agree to a recommended prison sentence of
              six (6) years on each count for Counts 1, 2 & 3 to be served
              concurrently to each other. A prison term of five (5) years on Count
              4 to be served consecutively to sentences in Counts 1, 2 & 3, and
              prison term of five (5) years on Count 5, to be served consecutively
              to sentence imposed on Count 4, for an aggregate prison term of
              16 years.

       {¶16} Appellant’s assignment of error is without merit.

       {¶17} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.



COLLEEN MARY O’TOOLE, J., concurs,

DIANE V. GRENDELL, J., concurs in judgment only.




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