[Cite as State v. Quinn, 2017-Ohio-8207.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-17-1170

        Appellee                                 Trial Court No. CR0200502529

v.

Jeremy J. Quinn, Jr.                             DECISION AND JUDGMENT

        Appellant                                Decided: October 13, 2017

                                            *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

        Jeremy J. Quinn, Jr., pro se.

                                            *****

        SINGER, J.

        {¶ 1} This accelerated appeal is from a judgment of the Lucas County Court of

Common Pleas. For the reasons that follow, we affirm.

        {¶ 2} In July 2005, appellant, Jeremy Quinn, Jr., was indicted on one count of

kidnapping and six counts of rape. The case proceeded to a jury trial and, on
November 16, 2005, the jury found appellant guilty on all counts. On December 9, 2005,

the trial court accepted the verdicts and sentenced appellant to an aggregate period of 70

years incarceration.

       {¶ 3} Appellant made a direct appeal of the December 2005 judgment. He set

forth four assignments of error: (1) the verdicts were unsupported by sufficient evidence

and against the manifest weight of the evidence; (2) the sentence imposed by the trial

court was excessive and contrary to law when the sentence exceeded the minimum term

of imprisonment on the basis of findings made by the trial court judge pursuant to a

facially unconstitutional statutory sentencing scheme; (3) appellant was deprived of

effective assistance of counsel; and (4) prosecutorial misconduct during the trial rendered

appellant’s trial fundamentally unfair and a new trial should be granted.

       {¶ 4} Appellant did not raise the issue of merger in his original direct appeal,

although he had unsuccessfully argued merger in the trial court. We affirmed appellant’s

convictions and sentence. See State v. Quinn, 6th Dist. Lucas No. L-06-1003, 2008-

Ohio-819.

       {¶ 5} On August 2, 2012, appellant was resentenced under State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. The trial court reimposed the original 70-

year aggregate sentence, and appellant appealed that judgment. See State v. Quinn, 6th

Dist. Lucas No. L-12-1242, 2014-Ohio-340.

       {¶ 6} In the third assignment of error in that appeal, appellant argued “the trial

court erred by not merging the offenses of conviction for purposes of sentencing.” We




2.
affirmed the judgment and specifically overruled that assigned error, holding that “res

judicata remains a bar to consideration of merger of allied offenses in Foster

resentencing.” Id. at ¶ 17.

       {¶ 7} On January 19, 2017, appellant filed a “Motion to Correct a Void Sentence

pursuant to O.R.C. 2941.25,” in which he claimed his convictions were void because “the

trial court committed reversible error, by failing to conduct a merger hearing pursuant to

Ohio Revised Code 2941.25, during the August 2, 2012 resentencing hearing.” The state

argued in response that appellant’s challenge to merger was barred by res judicata and the

law of the case doctrine. The trial court overruled appellant’s motion on June 21, 2017,

stating as follows:

              Before the court is Defendant’s “Motion to Correct a Void

       Sentence,” filed pro se January 19, 2017, and the state’s response. The

       court construes this motion as a petition for post-conviction relief.

       Defendant argues that the trial court erred by failing to merge various

       findings of guilty. However, as pointed out by the state, Defendant argued

       these matters on appeal in 2013 in CL-2012-1242, and was unsuccessful.

       The law of the case doctrine thus applies, and Defendant’s motion is

       denied.

       {¶ 8} Appellant now appeals from that judgment setting forth the following

assignments of error:




3.
              I. The Trial Court Erred in it’s (sic) Judgment dismissing Appellant

       (sic) Motion to Correct a Void Sentence in it’s (sic) failure to conduct a

       Merger Hearing, making his sentence void and Contrary to Law.

              II. The Trial Court Abused it’s (sic) discretion during the

       August 2nd, 2012 resentencing hearing by sentencing Mr. Quinn without

       conducting a Merger Hearing.

       {¶ 9} In both assigned errors we find appellant raises and appeals the issue of

merger and, therefore, we will address and dispose of both assigned errors

simultaneously.

       {¶ 10} As previously noted, “[i]t is longstanding law in Ohio that ‘any issue that

could have been raised on direct appeal and was not is res judicata and not subject to

review in subsequent proceedings.’” See Quinn, 6th Dist. Lucas No. L-12-1242, 2014-

Ohio-340, at ¶ 14. A “failure to raise merger on direct appeal would bar under res

judicata consideration of the issue” beyond direct appeal. Id., citing State v. Rice, 6th

Dist. Lucas No. L-12-1127, 2012-Ohio-6250, ¶ 7.

       {¶ 11} Furthermore, “Foster resentencing does not extend to include consideration

of merger of allied offenses for purposes of sentencing and * * * res judicata remains a

bar to consideration of merger claims at Foster resentencing.” Id. at ¶ 16, citing State v.

Strickland, 11th Dist. Trumbull No. 2012-T-0009, 2012-Ohio-5125, ¶ 12; State v. Smith,

3d Dist. Marion No. 9-11-36, 2012-Ohio-1891, ¶ 23-24; State v. Poole, 8th Dist.

Cuyahoga No. 94759, 2011-Ohio-716, ¶ 11-13; State v. Dillard, 7th Dist. Jefferson No.




4.
08-JE-35, 2010-Ohio-1407, ¶ 22; and State v. Martin, 2d Dist. Montgomery No. 21697,

2007-Ohio-3585, ¶ 15. Accordingly, appellant’s assignments of error are not well-taken.

                                       Conclusion

       {¶ 12} The judgment of the Lucas County Court of Common Pleas is affirmed.

The costs of this appeal are assessed to appellant pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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