[Cite as State v. Holliday, 2012-Ohio-2376.]




                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 11CAA110104
ANTWAUN T. HOLLIDAY

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 08CRI060334


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         May 29, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         ANTWAUN HOLLIDAY
Delaware County Prosecuting Attorney           #599-996
                                               P.O. Box
ERIC C. PENKAL                                 45699
Assistant Prosecuting Attorney                 SOCF
140 N. Sandusky Street                         Lucasville, Ohio 45609
Delaware, Ohio 43015
Hoffman, P.J.


       {¶1}   Defendant-appellant Antwaun T. Holliday appeals the November 4, 2011

Judgment Entry entered by the Delaware County Court of Common Pleas denying his

petition for post-conviction relief. Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE CASE AND FACTS

       {¶2}   On April 1, 2009, Appellant entered a plea of guilty to one count of identity

fraud, in violation of R.C. 2913.49(B)(2), and one count of theft, in violation of R.C.

2913.02(A)(3). The charges relate to an incident which occurred on April 5, 2008.

Additionally, Appellant pleaded guilty to two counts each of identity fraud and theft for

an incident(s) which occurred on April 9, 2008. The trial court sentenced Appellant to

three years in prison on the identity fraud count occurring on April 5, 2008, and five

years of community control for the theft count based on the same date.

       {¶3}   On April 5, 2008, Appellant used the personal information of Gale Nelson

to finance the purchase of a 2007 Suzuki GSXR600 motorcycle at Hinds Motorsports, a

motorcycle dealership in Lewis Center, Ohio. As a result, the Delaware County Grand

Jury charged Appellant with identity fraud and theft in Count One and Two of the

indictment.

       {¶4}   On April 9, 2008, Appellant again visited Hinds Motorsports, and used the

personal identity information of Gale Nelson to purchase and finance a 2007 Kawasaki

ZX1000 motorcycle. Counts Four and Five of the indictment allege identity fraud and

theft as a result of the incident. In addition, also on April 9, 2008, Appellant used Gale

Nelson's identification information to purchase and finance a 2007 Yamaha YZFR600

motorcycle. Counts Seven and Eight of the indictment charge identity fraud and theft,
respectively. As set forth above, Appellant entered a plea of guilty to Counts One, Two,

Five, Seven and Eight of the indictment on April 1, 2009.

      {¶5}   On February 26, 2010, Appellant filed a petition for post-conviction relief

alleging his sentence was unconstitutional due to the trial court's failure to make the

required statutory findings as to consecutive sentences.

      {¶6}   On November 4, 2011, the trial court overruled the motion for post-

conviction relief. Appellant now appeals, assigning as error:

      {¶7}   “I. DOUBLE JEOPARDY CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS AFFORDS A DEFENDANT PROTECTION AGAINST MULTIPLE

PUNISHMENTS FOR SAME OFFENSE.

      {¶8}   “II. THE EVIDENCE ADDUCED AT TRIAL REVEALED THAT THE

STATE RELIED UPON THE SAME CONDUCT TO SUPPORT THE THREE

OFFENSES AND THE OFFENSES WERE COMMITTED NEITHER SEPARATELY

NOR WITH A SEPARATE ANIMUS AS TO EACH, THEREBY ENTITLING

DEFENDANT TO THE PROTECTION OF R.C. §2941.25.”

                                             I & II

      {¶9}   As Appellant’s assignments of error raise related issues, we elect to

address them together.

      {¶10} “[A] postconviction relief proceeding is not an appeal of a criminal

conviction, but, rather, a collateral civil attack on the judgment.” State v. Calhoun, 86

Ohio St.3d 279, 281, 1996-Ohio-102. As such, a hearing is not always required when a

petition for postconviction relief is filed. Id. at 282-283; State v. Cole (1982), 2 Ohio

St.3d 112, 113, 443 N.E.2d 169; State v. Milanovich (1975), 42 Ohio St.2d 46, 50, 325
N.E.2d 540; State v. Pierce, (1998), 127 Ohio App.3d 578, 585, 713 N.E.2d 498; State

v. Worthy (May 30, 1997), 11th Dist. No. 96-P-0122, 1997 Ohio App. LEXIS 2370, at *5;

State v. Jackson (1980), 64 Ohio St.2d, 107, 110, 413 N.E.2d 819. The test is whether

there are substantive grounds for relief that would warrant a hearing based upon the

petition, the supporting affidavits, and the files and records of the case. Jackson, 64

Ohio St.2d at 110, 413 N.E.2d 819; State v. Strutton (1988), 62 Ohio App.3d 248, 575

N.E.2d 466, at paragraph one of the syllabus; Worthy, 1997 Ohio App. LEXIS 2370, at

*6. “If no such grounds exist, the trial court should dismiss the petition for post-

conviction relief sua sponte.” Id.

       {¶11} Furthermore, a petition for postconviction relief may be barred without

hearing by the doctrine of res judicata, “where a petitioner could have raised issues in

his petition at trial or on direct appeal.” Pierce, 127 Ohio App.3d at 575, 713 N.E.2d 494,

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

syllabus (emphasis added).

       {¶12} Appellant asserts his convictions on multiple offenses is void as the

charges arose from two separate incidents but involved the same conduct and are allied

offenses of similar import.          Appellant asserts his animus was to obtain three

motorcycles, and provide identity information to secure financing.        As a result, he

argues his convictions on multiple counts violates the Double Jeopardy Clause of the

Ohio and United States' Constitutions, and the trial court erred in imposing separate

sentences for the offenses.

       {¶13} Appellant cites the recent Ohio Supreme Court decision in State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, which held at syllabus:
        {¶14} "(1) when determining whether two offenses are allied offenses of similar

import subject to merger statute, the conduct of the accused must be considered;

overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699, and

        {¶15} "(2) crimes of felony murder and child endangering, as related to

defendant's conduct, were allied offenses and thus subject to merger."

        {¶16} Appellant's conviction and sentence were final on April 1, 2009, and

Appellant did not file a direct appeal. The Ohio Supreme Court's holding in Johnson

does not apply retroactively. State v. Parson, 2nd Dist. 24641, 2012-Ohio-730. A new

judicial ruling may be applied only to cases pending on the announcement date. State

v. Parson, 2nd. Dist. No. 24641, 2012-Ohio-730. The new judicial ruling may not be

applied retroactively to a conviction that has become final, i.e., where the accused has

exhausted all of his appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-

6592.

        {¶17} Further, Appellant's petition for post-conviction relief is not a substitute for

direct appeal. State v. Thompson, 9th Dist. 08CA20, 2009-Ohio-200. We find the

arguments raised herein were capable of being raised on direct appeal, and Appellant

has not established new information which has arisen subsequent to trial excusing him

of the burden of filing a direct appeal. Accordingly, we find Appellant's assigned errors

are barred by the doctrine of res judicata.
      {¶18} The November 4, 2011 Judgment Entry of the Delaware County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Wise, J. and

Edwards, J. concur


                                       s/ William B. Hoffman _________________
                                       HON. WILLIAM B. HOFFMAN


                                       s/ John W. Wise _____________________
                                       HON. JOHN W. WISE


                                       s/ Julie A. Edwards___________________
                                       HON. JULIE A. EDWARDS
             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                           FIFTH APPELLATE DISTRICT


STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
ANTWAUN T. HOLLIDAY                     :
                                        :
       Defendant-Appellant              :        Case No. 11CAA110104


       For the reason stated in our accompanying Opinion, the November 4, 2011

Judgment Entry of the Delaware County Court of Common Pleas is affirmed. Costs to

Appellant.




                                        s/ William B. Hoffman _________________
                                        HON. WILLIAM B. HOFFMAN


                                        s/ John W. Wise _____________________
                                        HON. JOHN W. WISE


                                        s/ Julie A. Edwards___________________
                                        HON. JULIE A. EDWARDS
