[Cite as State v. Lockhart, 2013-Ohio-3441.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 13 CAA 01 0007
                                               :
JOHN C. LOCKHART, JR.                          :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court
                                                   of Common Pleas, Case No. 06 CR I 01
                                                   0011



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            July 29, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

CAROL HAMILTON O’BRIEN                             JOHN C. LOCKHART, JR., PRO SE
DELAWARE COUNTY PROSECUTOR                         ToCI, ID # A536-014
                                                   2001 East Central Ave.
DOUGLAS DUMOLT                                     P.O. Box 80033
140 N. Sandusky St., 3rd Floor                     Toledo, OH 43608-0033
Delaware, OH 43015
Delaware County, Case No.13 CAA 01 0007                                                  2

Delaney, J.

       {¶1} Defendant-Appellant John C. Lockhart, Jr. appeals the January 8, 2013

judgment entry of the Delaware County Court of Common Pleas.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On January 13, 2006, the Delaware County Grand Jury indicted

Defendant-Appellant John C. Lockhart, Jr. on three counts of rape in violation of R.C.

2907.02(A)(1)(b) and three counts of gross sexual imposition in violation of R.C.

2907.05(A)(4). Said charges arose from incidents involving Lockhart and his live-in

girlfriend’s nine-year-old daughter.

       {¶3} A jury trial commenced on July 20, 2006. The jury found Lockhart guilty of

one count of rape in violation of R.C. 2907.02(A)(1)(b). The statute reads:

       (A)(1) No person shall engage in sexual conduct with another who is not

       the spouse of the offender or who is the spouse of the offender but is

       living separate and apart from the offender, when any of the following

       applies:

       (b) The other person is less than thirteen years of age, whether or not the

       offender knows the age of the other person.

       {¶4} The jury also found Lockhart guilty of three counts of gross sexual

imposition over a continuous period of time (November 27, 2004 – December 31, 2004

and January 1, 2005 – February 1, 2005) in violation of R.C. 2907.05(A)(4):

       (A) No person shall have sexual contact with another, not the spouse of

       the offender; cause another, not the spouse of the offender, to have
Delaware County, Case No.13 CAA 01 0007                                                       3


       sexual contact with the offender; or cause two or more other persons to

       have sexual contact when any of the following applies:

       (4) The other person, or one of the other persons, is less than thirteen

       years of age, whether or not the offender knows the age of that person.

       {¶5} By judgment entry filed October 16, 2006, the trial court sentenced

Lockhart to four years in prison on each count of gross sexual imposition. The trial

court also sentenced Lockhart to a term of life in prison for the rape conviction, pursuant

to R.C. 2907.02(B) in effect at the time of Lockhart’s sentencing:

       * * * Whoever violates this section is guilty of rape, a felony of the first

       degree. If the offender under division (A)(1)(b) of this section purposely

       compels the victim to submit by force or threat of force or if the victim

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

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

       {¶6} Lockhart filed a direct appeal of his conviction and sentence with this

Court in State v. Lockhart, 5th Dist. Delaware No. 06CAA100080, 2008-Ohio-57. In his

appeal, Lockhart raised six assignments of error. Lockhart did not argue in any of the

assignments of error that the trial court erred in sentencing Lockhart to life in prison.

We affirmed Lockhart’s conviction and sentence.

       {¶7} On December 17, 2009, the Delaware County Court of Common Pleas

issued a sua sponte Nunc Pro Tunc Sentencing Entry to include case history pursuant

to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163.

       {¶8} Lockhart filed a Motion to Correct Status of Void Sentence Entry on

October 19, 2010.
Delaware County, Case No.13 CAA 01 0007                                                       4


       {¶9} On March 1, 2011, Lockhart filed a Notice of Appeal with this Court of his

conviction and sentence pursuant to the December 17, 2009 nunc pro tunc sentencing

entry. Lockhart simultaneously filed a Motion for Leave to File Delayed Appeal. We

denied Lockhart’s motion for leave to file a delayed appeal on April 22, 2011.

       {¶10} Lockhart filed a Motion to Correct Status of Illegal Sentence on December

10, 2012. Lockhart argued in his motion the December 17, 2009 sentencing entry failed

to sentence Lockhart to a prison term of “three (3) to ten (10) years as mandated and

set forth in R.C. 2929.14(A)(1), for a felony one conviction.”

       {¶11} The trial court denied the motion on January 8, 2013.          It is from this

decision Lockhart now appeals.

                               ASSIGNMENT OF ERROR

       {¶12} Lockhart raises one Assignment of Error:

       {¶13} “MR. LOCKHART IS BEING ILLEGALLY IMPRISONED FOR RAPE,

PURSUANT TO R.C. §2907.02(A)(1)(b), WHEN HE IS NOT ELIGIBLE FOR PAROLE

AND HE IS BEING DENIED DUE PROCESS BY THE TRIAL COURT’S FAILURE TO

EVEN CONSIDER THE ILLEGALITY OF HIS SENTENCE.”

                                        ANALYSIS

       {¶14} Lockhart argues the trial court erred in denying his motion to correct status

of illegal sentence.    Lockhart asserts his sentence of life imprisonment, imposed

pursuant to R.C. 2907.02(B), incorrectly omits a definite prison sentence of 3, 4, 5, 6, 7,

8, 9, or 10 years pursuant to R.C. 2929.14(A)(1). We disagree.

       {¶15} We look to the versions of the statutes in effect at the time of Lockhart’s

sentencing. R.C. 2929.14(A)(1) stated:
Delaware County, Case No.13 CAA 01 0007                                                       5


       (A) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(4), (D)(5),

       (D)(6), or (G) of this section and except in relation to an offense for which

       a sentence of death or life imprisonment is to be imposed, if the court

       imposed a sentence upon an offender for a felony elects or is required to

       impose a prison term on the offender pursuant to this chapter, the court

       shall impose a definite prison term that shall be one of the following:

       (1) For a felony of the first degree, the prison term shall be three, four,

       five, six, seven, eight, nine, or ten years.

       {¶16} Lockhart was convicted of rape pursuant to R.C. 2907.02(A)(1)(b). Under

R.C. 2907.02(B), whoever violates R.C. 2907.02 is guilty of rape, a felony of the first

degree. R.C. 2929.14(A)(1) states that the prison term for a felony of the first degree is

three, four, five, six, seven, eight, nine, or ten years. In this case, however, Lockhart’s

victim was nine years old. If the victim was less than ten years of age at the time of the

crime, under R.C. 2907.02(A)(1)(b), the trial court must sentence the offender to life in

prison. R.C. 2907.02(B), effective June 13, 2002, stated:

       * * * If the offender under division (A)(1)(b) of this section purposely

       compels the victim to submit by force or threat of force or 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. * * *

       {¶17} Accordingly, under R.C. 2907.02 and R.C. 2929.14(A), an indefinite term

of life in prison was within the sentencing guidelines.
Delaware County, Case No.13 CAA 01 0007                                                        6


          {¶18} The trial court denied Lockhart’s motion to correct illegal sentence as

barred by the doctrine of res judicata.       Under the doctrine of res judicata, a final

judgment of conviction bars a convicted defendant who was represented by counsel

from raising and litigating in any proceedings, 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 or conviction, or on an

appeal from that judgment. State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169 (1982). A

defendant is barred from appealing issues which were raised or could have been raised

on direct appeal. State v. Fischer, 128 Ohio St.3d 92, 942 N.E.2d 332 (2012).

          {¶19} The trial court was correct in denying Lockhart’s motion on the basis of res

judicata. The trial court originally sentenced Lockhart on October 16, 2006 to life in

prison.     Lockhart subsequently filed a direct appeal.      In Lockhart’s direct appeal,

Lockhart did not raise as error his sentence to life in prison. The trial court issued a

nunc pro tunc sentencing entry on December 17, 2009 to comply with the dictates of the

Supreme Court’s holding in State v. Baker, supra. The December 17, 2009 nunc pro

tunc sentencing entry did not alter Lockhart’s original sentence. Lockhart’s arguments

as to his sentence under R.C. 2907.02(B) could have been raised in his direct appeal.

          {¶20} Accordingly, the sole Assignment of Error of Defendant-Appellant John C.

Lockhart, Jr. is overruled.
Delaware County, Case No.13 CAA 01 0007                                              7


                                 CONCLUSION

      {¶21} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Delaney, J.,

Farmer, P.J. and

Wise, J., concur.



                                    HON. PATRICIA A. DELANEY




                                    HON. SHEILA G. FARMER



                                    HON. JOHN W. WISE




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