[Cite as State v. Whitt, 2012-Ohio-3094.]


                                        COURT OF APPEALS
                                    COSHOCTON COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Julie A. Edwards, J.
-vs-                                         :
                                             :
STEPHEN H. WHITT                             :       Case No. 12-CA-3
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 09CR0067



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    July 5, 2012




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JASON W. GIVEN                                       STEPHEN H. WHITT, PRO SE
318 Chestnut Street                                  LECI
Coshocton, OH 43812                                  P.O. Box 56
                                                     Lebanon, OH 45036
Coshocton County, Case No. 12-CA-3                                                     2

Farmer, J.

       {¶1}   On July 20, 2009, the Coshocton County Grand Jury indicted appellant,

Stephen Whitt, on two counts of rape in violation of R.C. 2907.02 and two counts of

sexual battery in violation of R.C. 2907.03. Said charges arose from incidents involving

a child when the child was twelve and thirteen years old.

       {¶2}   A bench trial commenced on April 13, 2010. By judgment entry filed April

15, 2010, the trial court found appellant guilty of all counts. By judgment entry on

sentencing filed June 15, 2010, the trial court sentenced appellant to an aggregate

indefinite term of twenty-five years to life in prison and then merged the sexual battery

counts with the rape counts.

       {¶3}   Appellant appealed and this court affirmed his conviction, but reversed the

sentences on the sexual battery counts which had been imposed prior to the merge.

See, State v. Whitt, Coshocton App. No. 10-CA-10, 2011-Ohio-3022.

       {¶4}   On January 30, 2012, the trial court conducted a resentencing hearing.

By judgment entry on resentencing filed February 8, 2012, the trial court merged the

sexual battery counts with the rape counts and sentenced appellant to an aggregate

indefinite term of twenty-five years to life in prison.

       {¶5}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                                I

       {¶6}   "THE SENTENCE WAS CONTRARY TO LAW AND ALSO VIOLATED

THE 5TH AND 6TH 14TH AMENDMENT TO THE UNITED STATES CONSTITUTION

DUE PROCESS OF LAW EQUAL PROTECTION OF THE LAW."
Coshocton County, Case No. 12-CA-3                                                         3


                                              I

       {¶7}   Appellant claims his resentencing was contrary to law. We disagree.

       {¶8}   We note appellant directly appealed his convictions and sentences on July

9, 2010. This court affirmed appellant's convictions, but reversed the sentences on the

sexual battery counts which had been imposed prior to the merge, stating the following:

       {¶9}   "The trial court erred in sentencing Appellant on counts three and four, as

those convictions should have merged prior to sentencing, not after. Accordingly, the

trial court must resentence Appellant in accordance with R.C. 2941.25 with respect to

allied offenses.

       {¶10} "We do not find Appellant's other arguments regarding sentencing to be

persuasive. We find that the trial court properly advised Appellant of the mandatory

postrelease control provisions, and that it was within the trial court's discretion to impose

a sentence within the statutory range for counts one and three."            State v. Whitt,

Coshocton App. No. 10-CA-10, 2011-Ohio-3022, ¶72-73.

       {¶11} Therefore, the doctrine of res judicata applies to this case. Res judicata is

defined as "[a] valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was the

subject matter of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379,

1995-Ohio-331, syllabus. The appeal sub judice is limited to any issues arising from the

resentencing entry. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204.

       {¶12} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:
Coshocton County, Case No. 12-CA-3                                                           4

       {¶13} "In applying Foster [State v., 109 Ohio St.3d 1, 2006–Ohio–856] to the

existing statutes, appellate courts must apply a two-step approach. First, they must

examine the sentencing court's compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincingly

contrary to law. If this first prong is satisfied, the trial court's decision shall be reviewed

under an abuse-of-discretion standard."

       {¶14} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

       {¶15} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States

Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's

pre-Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, 128 Ohio

St.3d 1, 941 N.E.2d 768, 2010–Ohio–6320, held the Oregon case did not revive the

Foster statutes, and trial courts are not obligated to engage in judicial fact-finding prior

to imposing consecutive sentences.

       {¶16} Appellant argues the trial court erred in making factual findings regarding

the consecutive nature of the sentences. In addition, appellant makes a convoluted and

confusing argument regarding allied offenses of similar import.

       {¶17} A review of the January 30, 2012 resentencing hearing transcript and the

February 8, 2012 judgment entry on resentencing reveals the trial court did not make

any factual findings on the worst form of the offense as argued by appellant.

       {¶18} The rape counts and the sexual battery counts were allied offenses and

the trial court was instructed by this court on remand to merge the two rape counts with
Coshocton County, Case No. 12-CA-3                                                        5


the two sexual battery counts prior to imposing sentence, rather than sentencing

appellant on all four counts and then merging the sentences. A review of the judgment

entry on resentencing establishes that the trial court correctly followed this court's

instructions.

       {¶19} If appellant is arguing there should have been one conviction only for the

merged rape/sexual battery counts, we find the Supreme Court of Ohio in State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶26-27, addressed this issue as follows:

       {¶20} "On remand, the trial court should fulfill its duty in merging the offenses for

purposes of sentencing, but remain cognizant that R.C. 2941.25(A)'s mandate that a

'defendant may be convicted of only one' allied offense is a proscription against

sentencing a defendant for more than one allied offense. Nothing in the plain language

of the statute or in its legislative history suggests that the General Assembly intended to

interfere with a determination by a jury or judge that a defendant is guilty of allied

offenses. As the state asserts, by enacting R.C. 2941.25(A), the General Assembly

condemned multiple sentences for allied offenses, not the determinations that the

defendant was guilty of allied offenses.

       {¶21} "Because R.C. 2941.25(A) protects a defendant only from being punished

for allied offenses, the determination of the defendant's guilt for committing allied

offenses remains intact, both before and after the merger of allied offenses for

sentencing.***Thus, the trial court should not vacate or dismiss the guilt determination."

(Footnote omitted.)

       {¶22} Upon review, we find appellant's resentencing is not contrary to law.

       {¶23} The sole assignment of error is denied.
Coshocton County, Case No. 12-CA-3                                            6


      {¶24} The judgment of the Court of Common Pleas of Coshocton County, Ohio

is hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Edwards, J. concur.




                                       s/ Sheila G. Farmer________________



                                       s/ Patricia A. Delaney______________



                                       s/ Julie A. Edwards________________

                                                   JUDGES



SGF/sg 614
[Cite as State v. Whitt, 2012-Ohio-3094.]


                IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
STEPHEN H. WHITT                               :
                                               :
        Defendant-Appellant                    :        CASE NO. 12-CA-3




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed. Costs

to appellant.




                                               s/ Sheila G. Farmer________________



                                               s/ Patricia A. Delaney______________



                                               s/ Julie A. Edwards________________

                                                        JUDGES
