[Cite as State v. Fulford, 2014-Ohio-3503.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100878


                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     DENNIS FULFORD
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                         Case Nos. CR-13-573806-A and CR-13-573807-A

               BEFORE:           Blackmon, J., S. Gallagher, P.J., and McCormack, J.

              RELEASED AND JOURNALIZED:                    August 14, 2014
FOR APPELLANT

Dennis Fulford, pro se
Inmate No. 641-168
P.O. Box 57
Marion Correctional Institution
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: John F. Hirschauer
Katherine Mullin
Assistant County Prosecutors
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Dennis Fulford appeals pro se the trial court’s denial of his motion to set

aside his sentence and assigns the following error for our review:

       The trial court failed to make the statutory required determination of allied
       offenses prior to sentencing.

       {¶2} Having reviewed the record and pertinent law, we affirm Fulford’s

sentence. The apposite facts follow.

       {¶3} Fulford was charged in two separate cases. In CR-13-573806-A, he was

indicted for one count each for breaking and entering, vandalism, and petty theft. He

was also indicted for two counts of receiving stolen property. In CR-13-573807-A,

Fulford was indicted for one count each for breaking and entering, criminal damaging or

endangering, and theft. In addition, Fulford was serving a six-year sentence in

CR-13-570001, which was separate from the other two cases.

       {¶4} On July 5, 2012, Fulford entered a plea in both cases. In CR-13-573806-A,

Fulford pled guilty to one count each for breaking and entering, vandalism, and receiving

stolen property. The remaining counts were nolled. He was sentenced to nine months

on each count to run concurrent to each other but consecutive to the six-year sentence

imposed in CR-13-570001.

       {¶5} In CR-13-573807-A, Fulford pled guilty to breaking and entering and

criminal damaging. The theft count was nolled. The trial court sentenced Fulford to

nine months for breaking and entering and 90 days for criminal damaging, to be served

concurrently with each other and to the sentence imposed in CR-13-573806-A, but
consecutive to the six-year sentence in CR-13-570001. Fulford did not appeal from his

pleas.

         {¶6} On December 11, 2013, Fulford filed a pro se motion to set aside his

sentence in both CR-13-573806-A and CR-13-573807-A. He argued that the trial court

erred by failing to address whether the offenses were allied offenses of similar import.

The trial court denied the motion.

                                         Allied Offenses

         {¶7} In his sole assigned error, Fulford argues the trial court erred by denying his

motions to set aside his sentence because the court failed to address whether the offenses

were allied offenses of similar import.

         {¶8} Fulford did not file a direct appeal in either case, and the time to do so

expired on August 5, 2013.       Where a defendant “[does] not properly raise issues relating

to whether the trial court sentenced him on allied offenses of similar import in his first

appeal, his motion must be construed as a petition for post-conviction relief.” State v.

Williams, 9th Dist. Summit No. 25879, 2011-Ohio-6141, ¶ 13.                    Therefore, because

Fulford failed to appeal his sentences, his motions to set aside his sentence are construed

as petitions for postconviction relief.1

         {¶9} The doctrine of res judicata is applied in criminal cases to bar further

litigation of issues that were previously raised or that could have been raised previously in



         At the time that Fulford filed his petitions for postconviction relief, only 128 days had
         1

expired since the time to file his direct appeals expired. Therefore, his petition was well below the
180-day time limit to file his petitions pursuant to 2953.21(A)(2).
an appeal. State v. Brooks, 8th Dist. Cuyahoga No. 98380, 2012-Ohio-5292, ¶ 7, citing

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus (1967).

       {¶10} We have previously held that a defendant must raise on direct appeal the

issue of whether two offenses constitute allied offenses of similar import subject to

merger. If the defendant does not raise the issue on direct appeal and then attempts to

raise the issue in a postconviction motion, res judicata applies. State v. Nichols, 8th Dist.

Cuyahoga No. 10026, 2014-Ohio-607;          State v. Goldsmith, 8th Dist. Cuyahoga No.

95073, 2011-Ohio-840, ¶ 6; State v. Collins, 8th Dist.              Cuyahoga No. 97496,

2012-Ohio-3687, ¶ 10-11;         State v. Davis, 8th Dist.          Cuyahoga No. 96908,

2012-Ohio-1635, ¶ 12-13.        Fulford is raising this issue for the first time in a

postconviction appeal.    According to the precedent established in this court, res judicata

applies. Thus, the trial court did not err in denying Fulford’s motions to set aside his

sentences. Accordingly, Fulford’s sole assigned error is overruled.

       {¶11} Judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       It is ordered that a special mandate be sent to the Cuyahoga County Court of

Common Pleas to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

SEAN C. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR
