[Cite as State v. Gresham, 2012-Ohio-5079.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 98425



                                     STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 EDWARD GRESHAM
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-475735

        BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                      November 1, 2012
FOR APPELLANT

Edward Gresham, pro se
Inmate No. 504-309
Toledo Correctional Institution
2001 East Central Avenue
Toledo, Ohio 43608


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Edward Gresham appeals from the decision of the trial court denying his

motion to merge allied offenses.     Gresham argues the trial court erred in failing to (1)

merge his convictions for purposes of sentencing, (2) properly impose postrelease

control, and (3) impose an exact dollar amount of restitution owed. For the following

reasons, we affirm the decision of the trial court.

       {¶2} On January 19, 2006, the Cuyahoga County Grand Jury indicted Gresham

on two counts each of felonious assault and kidnapping, one count of domestic violence

and one count of attempted murder.        Gresham pleaded guilty to one count each of

felonious assault and domestic violence and two counts of kidnapping. The trial court

sentenced him to a total prison term of 14 years.     Gresham did not file a direct appeal.

       {¶3} On November 27, 2006, Gresham filed a motion to withdraw his guilty

pleas, alleging that he pleaded guilty at the recommendation of his attorney and that he

was assured that he would receive a prison sentence of two-to-four years.        On January

27, 2007, Gresham filed a motion to correct and consolidate his sentences in conjunction

with State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. On March 30,

2011, the trial court denied Gresham’s motion to withdraw his guilty pleas and his

motion to correct and consolidate his sentences in conjunction with Foster.         Gresham

appealed the denial of his motions and this court affirmed the trial court’s decision.
State v. Gresham, 8th Dist. No. 96735, 2011-Ohio-5930.

      {¶4} On November 21, 2011, Gresham filed a motion to merge allied offenses,

citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. On

May 10, 2012, the trial court denied Gresham’s motion, finding as follows:

      Defendant’s motion asserts that the court erred when it accepted
      defendant’s guilty pleas to charges of Felonious Assault (F-2), Domestic
      Violence (M-1), and two counts of Kidnapping (F-1) and imposed
      consecutive sentences on the felony charges totaling 14 years. Without
      identifying particular offenses, defendant argues that the sentences
      imposed should have run concurrent to one another as they are allied
      offenses of similar import.

      These are claims that could have been raised on direct

                    appeal.   However, defendant never filed a

                    direct appeal in this case.   Claims now raised

                    by defendant which were brought, or should

                    have been brought on appeal, are now res

                    judicata and are denied on that basis.

      {¶5} Gresham appeals, raising the following three assignments of error:

                               Assignment of Error One

      The trial court made an error of law when it denied the Appellant’s
      “Motion to Merge Allied Offenses Pursuant to O.R.C. 2941.25.”

                               Assignment of Error Two

      Appellant’s sentence to post-release control is unauthorized by law and
      void when it was not properly imposed.

                              Assignment of Error Three
       An interlocutory journal entry by the common pleas court cannot form the
       basis from which a valid direct appeal can be taken — when a journal entry
       fails to indicate the sentence of restitution as required by R.C. 2929.18 and
       Crim.R. 32(C).

       {¶6} In his first assignment of error, Gresham argues the trial court erred when

it denied his motion to merge allied offenses. We disagree.

       {¶7} Claims that offenses are allied invoke the protections of the Double

Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section

10, Article I of the Ohio Constitution.      State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923. Ohio’s postconviction statute, R.C. 2953.21(A)(1)(a),

specifically applies to any person who has been convicted of a criminal offense and

claims a denial or infringement of his rights so “as to render the judgment void or

voidable under the Ohio Constitution or the Constitution of the United States[.]”

       {¶8} “Where a criminal defendant, subsequent to his or her direct appeal, files a

motion seeking vacation or correction of his or her sentence on the basis that his or her

constitutional rights have been violated, such a motion is a petition for postconviction

relief as defined in R.C. 2953.21.”          State v. Reynolds, 79 Ohio St.3d 158,

1997-Ohio-304, 679 N.E.2d 1131.       In cases where no direct appeal is filed, a petition

for postconviction relief that claims a violation of a constitutional right must be filed no

later than 180 days after the expiration of the time for filing an appeal.             R.C.

2953.21(A)(1). It is unquestioned that Gresham’s petition is untimely. See State v.

Timmons, 10th Dist. No. 11AP-895, 2012-Ohio-2079. Nonetheless, had Gresham filed

a timely petition for postconviction relief, we find that principles of res judicata bar him
from asserting in a petition for postconviction relief that his convictions were allied

offenses of similar import that should have merged for sentencing.

         {¶9} Gresham’s allied-offenses argument is premised on the new analysis set

forth in Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, in which the

Ohio Supreme Court established the test as “whether it is possible to commit one offense

and commit the other with the same conduct[.]” Id. at ¶ 48; State v. Kelly, 8th Dist. No.

97673, 2012-Ohio-2930. However, Gresham’s convictions predated Johnson by four

years.    The test in place at the time of Gresham’s conviction was that set forth in State

v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699.          Rance required courts

to compare the elements of each offense in the abstract, with no reference to the

particular facts of the case, to determine whether the commission of one offense would

necessarily result in the commission of the other offense.       Gresham cannot rely on

Johnson as support for his argument when it was the Rance test in place at the time of

his conviction. Kelly.

         {¶10}   Even if we were to apply the Rance test, Gresham has failed to identify to

either the trial court or this court which offenses he claims are allied and subject to

merger.

         {¶11}   In addition to Gresham’s failure to prove the merits of his claim, in

failing to directly appeal his conviction and sentence, Gresham forfeited his opportunity

to raise an allied-offense claim at this late date.

         {¶12}   In State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph
nine of the syllabus states:

       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 proceeding 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 of
         conviction, or on an appeal from that judgment.

       {¶13}    In Kelly, 8th Dist. No. 97673, 2012-Ohio-2930, this court noted that it

recently reaffirmed a line of decisions holding that a failure to raise an allied-offenses

argument on direct appeal bars any attempt to raise an allied- offenses argument in a

petition for postconviction relief. Id. See also State v. Castro, 8th Dist. No. 97451,

2012-Ohio-2206. Gresham had the opportunity to raise an allied-offenses argument on

direct appeal but failed to do so.      The court correctly found that principles of res

judicata barred the assertion of those claims in the petition for postconviction relief.

       {¶14}    Gresham’s first assignment of error is overruled.

       {¶15}    In his second and third assignments of error, Gresham argues the trial

court incorrectly imposed a term of postrelease control and failed to specify the exact

dollar amount of restitution owed. For the following reasons, we decline to address

Gresham’s remaining assigned errors.

       {¶16}    It is well-settled that appellate courts “do not consider questions not

presented to the court whose judgment is sought to be reversed.” State ex rel. Porter v.

Cleveland Dept. of Public Safety, 84 Ohio St.3d 258, 259, 1998-Ohio-539, 703 N.E.2d

308. Ohio courts have held that a party’s failure to raise an issue at the trial court level

acts as a waiver of the issue on appeal. Mayfield Hts. v. Barry, 8th Dist. No. 82159,
2003-Ohio-4403; Sekora v. Gen. Motors Corp., 61 Ohio App.3d 105, 572 N.E.2d 184

(11th Dist.1989). An appellate court may decline to consider errors that could have

been brought to the trial court’s attention and hence avoided or corrected. Schade v.

Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982).

       {¶17} Issues that are not raised or tried in the trial court and are not addressed in

the court’s judgment may not be raised for the first time on appeal. State ex rel. Martin

v. Cleveland, 67 Ohio St.3d 155, 1993-Ohio-192, 616 N.E.2d 886; see also Sellers v.

Morrow Auto Sales, 124 Ohio App.3d 543, 547, 706 N.E.2d 837 (12th Dist.1997). A

party must adhere on appeal to the theory on which the case was tried in the trial court.

Russin v. Shepherd, 11th Dist. No. 2006-G-2708, 2007-Ohio-3206. A theory that was

not introduced in the trial cannot be raised for the first time on appeal. Id.

       {¶18} Gresham did not raise these arguments at the trial court level below and

thus, we decline to address them for the first time in this appeal.

       {¶19} Gresham’s second and third assignments of error are overruled.

       {¶20} The judgment of the trial court is affirmed.

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

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution.     The defendant’s conviction having been affirmed, any bail

pending appeal is terminated.       Case remanded to the trial court for execution of

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

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
