[Cite as State v. Currie, 2014-Ohio-4334.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 2014CA00057
DAVID CURRIE, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Stark County Court of
                                               Common Pleas, Case No. 2012CR1066


JUDGMENT:                                       Sentence Vacated and Remanded


DATE OF JUDGMENT ENTRY:                         September 29, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant

JOHN D. FERRERO,                               DAVID CURRIE, JR., PRO SE
PROSECUTING ATTORNEY,                          Inmate #A633-883
STARK COUNTY, OHIO                             Richland Correctional Institution
                                               P.O. Box 8107
By: RONALD MARK CALDWELL                       Mansfield, Ohio 44901
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South - Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2014CA00057                                                               2

Hoffman, P.J.


         {¶1}   Defendant-appellant David Currie Jr. appeals the Judgment Entry of the

Stark County Court of Common Pleas denying his motion to withdraw his guilty plea.

Plaintiff-appellee is the state of Ohio.

                             STATEMENT OF THE CASE AND FACTS1

         {¶2}   On September 4, 2012, Appellant was indicted by the Stark County Grand

Jury with one count of having weapons while under disability, in violation of R.C.

2923.13(A)(3), a felony of the third degree; one count of trafficking in heroin, in violation

of R.C. 2925.03(A)(2), a felony of the fourth degree per R.C. 2925.03(C)(6)(b); one

count of possession of heroin, in violation of R.C. 2925.11(A), a felony of the fourth

degree per R.C. 2925.11(C)(6)(b); one count of trafficking in cocaine, in violation of R.C.

2925.03(A)(2), a felony of the fourth degree per R.C. 2925.03(C)(4)(c); and one count of

possession of cocaine, in violation of R.C. 2925.11(A), a felony of the fourth degree per

R.C. 2925.11(C)(4)(b). The charges arose from the execution of a search warrant at

Appellant’s residence where police found a loaded gun, amounts of heroin, and

amounts of cocaine. Appellant admitted to police the gun and heroin were his, he used

cocaine, and he sold drugs from his residence.

         {¶3}   On December 17, 2012, Appellant entered a plea of guilty to the charges

and was sentenced to twelve months on each count, to be served consecutively, for an

aggregate prison term of 60 months.

         {¶4}   On April 30, 2013, Appellant filed for a delayed appeal pursuant to

Appellate Rule 5(A). In the docketing statement filed with the delayed appeal, Appellant
1
    A full rendition of the underlying facts is unnecessary for our resolution of this appeal.
Stark County, Case No. 2014CA00057                                                        3


noted he was challenging the consecutive nature of his prison sentence, as well as the

improper imposition of post-release control. This Court denied the motion for delayed

appeal.

       {¶5}   On July 1, 2013, Appellant filed a “Motion to Correct/Merge Sentence” in

order to challenge his sentence.      Appellant moved the trial court to reconsider its

sentence on the grounds the drug trafficking and possession offenses should have

merged pursuant to R.C. 2941.25, and the aggregate consecutive sentence exceeded

the statutory maximum per R.C. 2929.41(A), R.C. 2929.14(A)(4), and R.C.

2929.14(A)(3)(b). Appellant specifically requested his sentence be reduced from 60

months to three years. The trial court summarily overruled the motion. Appellant filed

an appeal with this Court. On appeal, this Court found res judicata barred litigation of

the merger issue, and affirmed the decision of the trial court.

       {¶6}   On March 19, 2014, Appellant filed a motion to withdraw his guilty plea per

Criminal Rule 32.1 claiming ineffective assistance of trial counsel for having him plead

guilty to a void sentence. Appellant argued his sentence was void as the charges

constituted allied offenses of similar import, and the trial court did not make the findings

necessary to support consecutive sentences as required under R.C. 2929.14(C)(4).

       {¶7}   The trial court denied the motion to withdraw guilty plea via Judgment

Entry of March 25, 2014.

       {¶8}   Appellant appeals, assigning as error:

       {¶9}   "I.   THE    TRIAL   COURT'S       FAILURE    TO    COMPLY      WITH     THE

MANDATORY PROVISION OF AM. SUB. H.S. 86, GEN. ASSEM. (OHIO 2011) IN

CONJUNCTION         WITH    R.C.    2929.14(C)    WHEN      IMPOSING      CONSECUTIVE
Stark County, Case No. 2014CA00057                                                   4


SENTENCES, RENDERED THE SENTENCE VOID AND SUBJECT TO AUTOMATIC

REVERSAL AND REMAND.

       {¶10} "II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S CR. R. 32.1 MOTION TO WITHDRAW HIS GUILTY PLEA WHERE

TRIAL COUNSEL FAILED TO OBJECT TO A SENTENCE BASED UPON ALLIED

OFFENSES OF SIMILAR IMPORT IN VIOLATION OF STATE AND FEDERAL

DOUBLE JEOPARDY PROHIBITIONS.

       {¶11} "III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

APPELLANT'S CR. R. 32.1 MOTION TO WITHDREW HIS GUILTY PLEA WHERE

TRIAL COUNSEL FAILED TO OBJECT TO THE IMPOSITION OF A VOID SENTENCE

IN VIOLATION OF STATE AND FEDERAL DUE PROCESS."

                                               II & III

       {¶12} We address these assignments of error together as they raise similar

arguments.

       {¶13} We note the state of Ohio does not dispute the merits of Appellant's claim

some of his convictions for trafficking and possession should have been considered

allied offenses for purposes of sentencing.           The State concedes Appellant has

demonstrated plain error occurred during sentencing pursuant to the Ohio Supreme

Court's pronouncement in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-6314. The

State agrees, "The Court should therefore sustain the assignment of error, barring any

procedural bars to consideration of the merits of the claim, and remand the case to the

trial court for resentencing." (Appellee Brief at 15.)
Stark County, Case No. 2014CA00057                                                       5


       {¶14} Res judicata presents such a procedural bar. However, given the State's

candid recognition of the merits of Appellant's claim and in the interest of justice, we

elect to reverse our previous decision to deny Appellant's Motion for Leave to File a

Delayed Appeal. We will treat the instant briefing by the parties in this appeal as if they

had been filed on direct appeal, without further briefing and precluding presentation of

any additional claims of error. Upon so doing, we find the trial court's and this Court's

prior rulings do not constitute res judicata since this "direct appeal" would have

preceded his Motion to Correct/Merge Sentence and the appeal therefrom.

       {¶15} We affirm the trial court's denial of Appellant's motion to withdraw his plea,

but we vacate his sentence and remand the case to the trial court for resentencing.

                                                I

       {¶16} In light of our disposition of Appellant's other assignments of error, we find

his argument herein premature and overruled.

       {¶17} Appellant’s sentence in the Stark County Court of Common Pleas is

vacated, and the matter remanded to the trial court for resentencing.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur
Stark County, Case No. 2014CA00057   6
