[Cite as State v. Barber, 2015-Ohio-4607.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
         Plaintiff-Appellee                        :   Appellate Case No. 26612
                                                   :
 v.                                                :   Trial Court Case Nos. 2000-CR-1272
                                                   :                     2000-CR-0497
 CURTIS L. BARBER                                  :
                                                   :   (Criminal Appeal from
         Defendant-Appellant                       :   Common Pleas Court)
                                                   :

                                              ...........

                                             OPINION

                           Rendered on the 6th day of November, 2015.

                                              ...........

MATHIAS H. HECK, JR., by DYLAN SMEARCHECK, Atty. Reg. No. 0085249, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CURTIS L. BARBER, Inmate No. 410-414, Marion Correctional Institution, P.O. Box 57,
Marion, Ohio 43302
      Defendant-Appellant-Pro Se

                                             .............




WELBAUM, J.
                                                                                        -2-




      {¶ 1} Defendant-appellant, Curtis L. Barber, appeals pro se from the judgment of

the Montgomery County Court of Common Pleas overruling his combined motion for

sentencing and motion for an allied offense determination. Because the issues appealed

from are barred by the doctrine of res judicata, the judgment of the trial court will be

affirmed.

      {¶ 2} In March 2001, Barber was convicted of one count of robbery in Case No.

2000 CR 497 and sentenced to five years in prison, to be served concurrently with a

sentence he received in Case No. 2000 CR 1272. In Case No. 2000 CR 1272, Barber

was convicted of aggravated robbery, felonious assault, aggravated burglary, kidnapping,

disrupting public services, and three counts of attempted aggravated murder. As a result

of his conviction, the trial court sentenced Barber to an aggregate term of 41.5 years in

prison.

      {¶ 3} Barber did not file a direct appeal from the robbery conviction in Case No.

2000 CR 497; however, he did file a direct appeal in Case No. 2000 CR 1272. In that

appeal, Barber claimed the trial court improperly denied him the opportunity to present a

certain statement at trial that was made by the victim. He also argued that the prosecutor

unfairly commented on his failure to testify in his own defense. In conducting a review

under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we found

no claim with arguable merit and affirmed Barber’s conviction and sentence in State v.

Barber, 2d Dist. Montgomery No. 18784, 2002-Ohio-7100.

      {¶ 4} On October 15, 2002, Barber filed a petition for post-conviction relief in Case

No. 2000 CR 1272, requesting the trial court to vacate his sentence. The trial court
                                                                                        -3-


denied Barber’s petition. Barber then filed a second petition to vacate his sentence on

May 16, 2006, which the trial court also denied. Barber then appealed. However, in

State v. Barber, 2d Dist. Montgomery No. 21837, 2007-Ohio-5649, we affirmed the trial

court’s denial of Barber’s second petition, holding that it did not meet the jurisdictional

requirements of R.C. 2953.23(A), which governs the circumstances when a trial court

may review a successive petition for post-conviction relief.

       {¶ 5} Thereafter, on August 7, 2008, the trial court resentenced Barber pursuant

to R.C. 2929.191 in both Case Nos. 2000 CR 497 and 2000 CR 1272 upon discovering

that it had neglected to notify Barber that he would be subject to a mandatory period of

post-release control following his release from prison. On August 8, 2008, the trial court

filed a judgment entry of conviction and sentence in both cases, nunc pro tunc to March

5, 2001, imposing the same sentence that had originally been imposed, but correcting the

sentence to include a mandatory period of post-release control.

       {¶ 6} Barber timely appealed from his resentencing in both cases. In that appeal,

Barber raised various ineffective assistance of counsel claims with respect to his

resentencing. Barber also challenged his original sentence in Case No. 2000 CR 1272,

claiming the trial court erred in failing to merge allied offenses of similar import. On

March 5, 2010, we affirmed Barber’s resentencing and overruled his allied offense claim

in State v. Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831.

       {¶ 7} Following that appeal, on June 14, 2011, Barber filed a pro se motion for

resentencing in Case No. 2000 CR 1272. In support of this motion, Barber argued that

he should have been resentenced pursuant to R.C. 2941.25 and the holding in State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, which had set forth a
                                                                                       -4-


new standard for determining whether offenses are allied offenses of similar import. The

trial court dismissed Barber’s motion holding that Johnson did not apply retroactively to

Barber who was originally convicted and sentenced in 2001. Barber again appealed,

and we affirmed the trial court’s decision in State v. Barber, 2d Dist. Montgomery No.

24770, 2012-Ohio-2332.

       {¶ 8} After his fourth appeal, on October 3, 2013, Barber filed a combined motion

for sentencing and motion for an allied offense determination in both Case Nos. 2000 CR

1272 and 2000 CR 497. In the motions, Barber argued that the trial court’s August 8,

2008 nunc pro tunc judgment entry of conviction and sentence did not properly notify him

whether post-release control was mandatory or discretionary. He also claimed that the

trial court failed to make findings required under Crim.R. 25 at the resentencing hearing.

Barber further argued that, while the trial court did merge several of his offenses at his

original sentencing, there remained allied offenses of similar import that the trial court

should have merged during resentencing. Following a memorandum in opposition from

the State, the trial court overruled Barber’s motions on grounds that his claims were

barred by the doctrine of res judicata.

       {¶ 9} Barber now appeals from the trial court’s decision overruling his combined

motion for sentencing and motion for an allied offense determination. In his brief, Barber

raises three assignments of error that mirror the same three arguments raised in his

motions before the trial court.

       {¶ 10} Upon review, we conclude that the trial court properly found that Barber’s

three claims are barred by res judicata. “Res judicata bars re-litigation of a matter that

was raised or could have been raised on direct appeal. * * * Otherwise, appeals could be
                                                                                        -5-

filed indefinitely.” State v. Henley, 2d Dist. Montgomery No. 26604, 2015-Ohio-4113,

¶ 11, citing State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481, 4 N.E.3d 989.

       {¶ 11} In the present appeal, Barber’s three assignments of error each challenge

an aspect of his August 2008 resentencing. However, Barber previously filed a direct

appeal from his resentencing in Barber, 2d Dist. Montgomery No. 22929, 2010-Ohio-831,

wherein this court affirmed the judgment of the trial court. Barber is now trying to raise

additional claims concerning his resentencing, claims which could have been raised in

the prior appeal. Barber is also attempting to raise an allied offense claim, a claim which

this court has previously addressed in his appeals from the August 2008 resentencing

and the trial court’s decision denying his June 2011 motion for resentencing.

Accordingly, Barber’s three claims are barred by res judicata, as they either could have

been raised or were raised in his prior appeals.

       {¶ 12} Barber’s three assignments of error are overruled and the judgment of the

trial court is affirmed.

                                     .............



DONOVAN, J. and HALL, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Dylan Smearcheck
Curtis L. Barber
Hon. Dennis J. Langer
