[Cite as State v. Stores, 2013-Ohio-4361.]
                             STATE OF OHIO, MAHONING COUNTY

                                    IN THE COURT OF APPEALS

                                             SEVENTH DISTRICT

STATE OF OHIO,                                     )
                                                   )   CASE NO. 12 MA 174
        PLAINTIFF-APPELLEE,                        )
                                                   )
        - VS -                                     )         OPINION
                                                   )
ANDRE STORES,                                      )
                                                   )
        DEFENDANT-APPELLANT.                       )


CHARACTER OF PROCEEDINGS:                              Criminal Appeal from Common Pleas
                                                       Court, Case No. 95 CR 465.


JUDGMENT:                                              Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                                Attorney Paul J. Gains
                                                       Prosecuting Attorney
                                                       Attorney Ralph M. Rivera
                                                       Assistant Prosecuting Attorney
                                                       21 W. Boardman St., 6th Floor
                                                       Youngstown, OH 44503

For Defendant-Appellant:                               Andre Stores, Pro-se
                                                       #314-976
                                                       Marion Correctional Inst.
                                                       P.O. Box 57
                                                       Marion, OH 43302


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                       Dated: September 25, 2013
[Cite as State v. Stores, 2013-Ohio-4361.]
DeGenaro, P.J.
        {¶1}     Defendant-Appellant, Andre E. Stores, appeals pro-se from the September
6, 2012, judgment of the Mahoning County Court of Common Pleas denying his August
27, 2012 motion for resentencing from his 1996 conviction. Stores' arguments are
meritless. First, Stores' motion is properly considered a post-conviction petition, and was
treated by the trial court as such. Second, Stores untimely filed his petition and gave no
reason for the delay warranting dismissal on this basis. Finally, Stores' petition is
additionally barred by the doctrine of res judicata; the argument regarding merger of the
firearm specifications could have been raised in his direct appeal. Accordingly, the
decision of the trial court is affirmed.
                                        Facts and Procedural History
        {¶2}     On January 12, 1996, a jury found Stores guilty of complicity to commit
aggravated burglary, complicity to commit aggravated robbery, and complicity to commit
kidnapping, all with accompanying firearm specifications. Stores' conviction was affirmed,
State v. Stores (Stores I), 7th Dist. Mahoning No. 96 CA 24, 1999 WL 167862 (Mar. 22,
1999), and his application for reopening was denied. State v. Stores (Stores II), 7th Dist.
Mahoning No. 96 CA 24, 2001 WL 275198 (Mar. 16, 2001).
        {¶3}     On August 27, 2012, Stores filed a motion for resentencing pursuant to R.C.
2941.25 arguing that the record was unclear as to whether his sentence on the three
firearm specifications was to be served concurrently or consecutively. He further argued
that if the firearm specifications were ordered to be served consecutively then they should
have been merged under Ohio law. The State moved to dismiss arguing that Stores'
motion must be construed as a post-conviction petition, was untimely filed pursuant to
R.C. 2953.21, and barred by res judicata. On September 6, 2012, the trial court
dismissed Stores' motion finding that the same was untimely filed and his claims were
barred by the doctrine of res judicata.
                                     Untimely Post-Conviction Petition
        {¶4}     In his sole assignment of error, Stores asserts:
        {¶5}     "Did the Trial Court commit Plain Error pursuant to Crim.R. 52(b) by
Sentencing Appellant to more than one term of Firearm specification that all arose out of
                                                                                        -2-


the same incident."
       {¶6}   Where a criminal defendant, subsequent to his direct appeal, files a motion
seeking vacation or correction of his sentence on the basis that his constitutional rights
have been violated, such motion is construed as a petition for post-conviction relief as
defined in R.C. 2953.21. State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131,
syllabus (1997). Moreover, where a defendant appeals his conviction, the petition must
be filed within one hundred eighty days from the date on which the trial transcript is filed
in the court of appeals on the direct appeal. R.C. 2953.21(A)(2). Finally, a trial court's
decision that a petition is untimely renders unnecessary any further inquiry into its merits.
State v Bryan,7th Dist. Mahoning No. 04 MA 109, 2005-Ohio-5054, ¶6.
       {¶7}   To be afforded delayed relief, the petitioner must demonstrate either that he
was unavoidably prevented from discovering facts upon which the petition is based upon,
or that the petition raises a new federal or state right recognized by the United States
Supreme Court that applies retroactively to the petitioner. State v. Hill, 129 Ohio App.3d
658, 661, 718 N.E.2d 978 (1st Dist.). In addition to one of these two factors, the
petitioner must show by clear and convincing evidence that, but for the constitutional
error, no reasonable trier of fact would have found him guilty of the offense for which he
was convicted. Id.
       {¶8}   The record reflects that Stores' motion was filed long after the expiration of
the 180-day period, and he offers no reasoning for the delay in filing. The trial court
correctly treated the motion as a delayed petition for post-conviction relief, found it was
untimely, and thus without jurisdiction to consider the merits of Stores' claim. Accordingly,
this argument is meritless.
                                          Res Judicata
       {¶9}   Although Stores' petition was untimely, making merit determination
unnecessary, Bryan, supra, the trial court additionally rejected the petition on the basis of
res judicata, finding that Stores' merger argument should have been raised in Stores I, his
direct appeal.
       {¶10} Under the doctrine of res judicata, a final judgment of conviction bars the
                                                                                        -3-


defendant from raising and litigating in any proceeding, except a direct appeal from that
judgment, any defense or any claimed lack of due process that the defendant raised or
could have raised at trial which resulted in that judgment of conviction or in a direct
appeal from that judgment. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104
(1967). Conversely, issues properly raised in a post-conviction petition are those which
could not have been raised on direct appeal because the evidence supporting the issue is
outside the record. State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975).
       {¶11} Stores argues that his sentence on the three firearm specifications should
have been merged pursuant to R.C. 2929.14 which became effective during the
pendency of his appeal. Stores was convicted of three felonies and the accompanying
firearm specifications on January 22, 1996. The appeal in Stores I was not resolved until
March 22, 1999. On July 1, 1996, R.C. 2929.14 became effective which provides in
pertinent part: "[a] court shall not impose more than one prison term on an offender under
(D)(1)(a) of this section [which lists the various terms of actual incarceration for firearm
specifications] for felonies committed as part of the same act or transaction." R.C.
2929.14(D)(1)(b).
       {¶12} However, there was a previous analogous provision in effect at the time
Stores committed the offenses and was sentenced; R.C. 2929.71, which provides:

       "If an offender is convicted of, or pleads guilty to, two or more felonies and
       two or more specifications charging him with having a firearm on or about
       his person or under his control while committing the felonies, each of the
       three-year terms of actual incarceration imposed pursuant to this section
       shall be served consecutively with * * * [the other prison terms] unless any
       of the felonies were committed as part of the same act or transaction. If
       any of the felonies were committed as part of same act or transaction, only
       one three-year term of actual incarceration shall be imposed for those
       offenses, which three-year term shall be served consecutively with [the
       other prison terms] * * *." R.C. 2929.71(B).
                                                                                         -4-



       {¶13} Both statutory provisions deal with merging firearm specifications, and were
available to Stores to argue on direct appeal and neither were raised in Stores I. The trial
court correctly found that Stores was barred from raising the merger issue in his petition
based upon res judicata. Accordingly, this argument is meritless.
       {¶14} In sum, Stores' assignment of error is meritless. First, Stores' motion is
properly considered a post-conviction petition, and was treated by the trial court as such.
Second, Stores untimely filed his petition and gave no reason for the delay, warranting
dismissal on this basis. Finally, Stores' petition is additionally barred by the doctrine of
res judicata; the argument regarding merger of the firearm specifications could have been
raised in his direct appeal. Accordingly, the judgment of the trial court is affirmed.
Donofrio, J., concurs.
Waite, J., concurs in judgment only.
