[Cite as State v. Hickman, 2012-Ohio-3050.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                    :      Hon. Sheila G. Farmer, J.
                                              :      Hon. John W. Wise, J.
-vs-                                          :
                                              :
THOMAS T. HICKMAN                             :      Case No. 11-CA-134
                                              :
        Defendant-Appellant                   :      OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common Pleas,
                                                  Case No. 09CR332



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT ENTRY:                           June 29, 2012




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

BRIAN T. WALTZ                                    THOMAS HICKMAN, PRO SE
20 South Second Street                            Inmate #618258
4th Floor                                         Chillicothe Correctional Institution
Newark, OH 43055                                  P.O. Box 5500
                                                  Chillicothe, OH 45601
Licking County, Case No. 11-CA-134                                                        2

Farmer, J.

       {¶1}   On July 17, 2009, the Licking County Grand Jury indicted appellant,

Thomas Hickman, on one count of felony fleeing in violation of R.C. 2921.331, three

counts of possession of drugs in violation of R.C. 2925.11, and one count of tampering

with evidence in violation of R.C. 2921.12.

       {¶2}   On December 7, 2009, appellant pled no contest to the felony fleeing

count and guilty to the possession counts, and the tampering count was dismissed. By

judgment entry filed same date, the trial court found appellant guilty of the felony fleeing

count and sentenced him to an aggregate term of three years and ten months in prison,

plus an additional twenty-five months of postrelease control time from a prior case.

       {¶3}   On November 22, 2011, appellant filed a petition to modify and/or reduce

sentences.    By judgment entry filed November 30, 2011, the trial court denied the

petition.

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

consideration. Assignments of error are as follows:

                                              I

       {¶5}   "THE TRIAL COURT ERRORED (SIC) BY NOT RECOGNIZING THE

DEFENDANT'S PETITION TO MODIFY AND/OR REDUCE SENTENCES AS PRE-

SENTENCE MOTION TO WITHDRAW HIS PLEA UNDER CRIM.R. 32.1 BECAUSE

DEFENDANT WAS GIVEN A VOID OR VOIDABLE SENTENCE IT SHOULD HAVE

BEEN CONSIDERED A NULLITY AND BEEN VACATED AND DEFENDANT

SUBSEQUENTLY RESENTENCED."
Licking County, Case No. 11-CA-134                                                       3


                                             II

      {¶6}     "THE TRIAL COURT ERRORED (SIC) AND ABUSED ITS DISCRETION

BY   REFUSING       TO    CORRECT       A   PLAIN    ERROR      THAT    OCCURRED        AT

SENTENCING WHERE APPELLANT WAS GIVEN CONSECUTIVE SENTENCES ON

ALLIED OFFENSES OF SIMILAR IMPORT THAT SHOULD HAVE BEEN MERGED."

                                             III

      {¶7}     "THE TRIAL COURT ERRORED (SIC) AND ABUSED ITS DISCRETION

WHEN IT ARBITRARILY DISMISSED THE DEFENDANT'S PETITION TO CORRECT

PLAIN ERROR, WITHOUT A HEARING AND WITHOUT RULING UPON THE ISSUES

PRESENTED IN THE PETITION TO CORRECT PLAIN ERROR, BY ESSENTIALLY

INVOKING THE DOCTRINE OF RES JUDICATA WHEN IN FACT THE DOCTRINE OF

RES JUDICATA IS NOT APPLICABLE TO CLAIMS OF PLAIN ERROR BROUGHT TO

THE COURT UNDER CRIM.R. 52(B)."

                                              I

      {¶8}     Appellant claims the trial court erred in not recognizing his petition to

modify and/or reduce sentences as a motion to withdraw his pleas under Crim.R. 32.1.

We disagree.

      {¶9}     Nowhere in his petition did appellant allude to withdrawing his pleas.

      {¶10} In his appellate brief, appellant argues the trial court should have treated

his petition as a motion to withdraw his pleas because his sentences were void or

voidable as they were erroneously ordered to be served consecutively. In support of his

argument, appellant cites this court to State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-
Licking County, Case No. 11-CA-134                                                      4

1577.    The Boswell case involved void sentences for failure to include postrelease

control. Appellant's case did not involve the failure to impose postrelease control.

        {¶11} Upon review, we find the trial court did not err in not recognizing

appellant's petition to modify and/or reduce sentences as a motion to withdraw his pleas

under Crim.R. 32.1.

        {¶12} Assignment of Error I is denied.

                                            II

        {¶13} Appellant claims the trial court erred in not merging two of the possession

counts and sentencing him to consecutive sentences.

        {¶14} Appellant was charged with three counts of possessing drugs, one for

heroin, one for cocaine, and one for marijuana. In his petition to modify and/or reduce

sentence, appellant argued because he consumed a compound mixture of heroin and

cocaine called a "speedball," he did not intend to commit more than one crime and there

was not a separate animus for both offenses; therefore these two possession counts

were allied offenses of similar import and they should have been merged for sentencing

purposes. Appellant also argued the length of his sentences were severe.

        {¶15} We note appellant did not attach any supporting affidavits to his petition.

Blood and urine samples taken from appellant after his arrest indicated he had

consumed heroin, cocaine, and marijuana. December 7, 2009 T. at 10.

        {¶16} Appellant never filed a direct appeal of his convictions. Although appellant

did file an appeal on January 15, 2010, this court dismissed the appeal for want of

jurisdiction.   State v. Hickman, Licking App. No. 2010-CA-11, 2010-Ohio-4445.

Appellant did not pursue any further appeals.
Licking County, Case No. 11-CA-134                                                     5

      {¶17} As stated by the Supreme Court of Ohio in State v. Perry (1967), 10 Ohio

St.2d 175, paragraphs eight and nine of the syllabus, the doctrine of res judicata is

applicable to petitions for postconviction relief. The Perry court explained the doctrine

at 180-181 as follows:

      {¶18} "Under the doctrine of res judicata, a final judgment of conviction bars the

convicted defendant 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."

      {¶19} Appellant never challenged the failure to merge his offenses due to allied

offenses of similar import or the severity of his sentences on direct appeal. Nothing

precluded appellant from pursuing these arguments on direct appeal.

      {¶20} As for appellant's arguments regarding plain error, appellant "cannot

employ the plain error rule to circumvent the doctrine of res judicata." State v. Evans

(May 16, 1990), Lorain App. No. 89CA004587.

      {¶21} Further, any challenges to the consecutive nature of his sentences

pursuant to H.B. No. 86 are improper, as appellant was sentenced on December 7,

2009 and H.B. No. 86 became effective on September 30, 2010. H.B. No. 86 is not to

be applied retroactively. State v. Fields, Muskingum App. No. CT11-0037, 2011-Ohio-

6044, ¶9-11.

      {¶22} Assignment of Error II is denied.
Licking County, Case No. 11-CA-134                                                         6


                                             III

       {¶23} Appellant claims the trial court erred in denying his petition without a

hearing and invoking the doctrine of res judicata. We disagree.

       {¶24} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)

states the following in pertinent part:

       {¶25} "Before granting a hearing on a petition filed under division (A) of this

section, the court shall determine whether there are substantive grounds for relief. In

making such a determination, the court shall consider, in addition to the petition, the

supporting affidavits, and the documentary evidence, all the files and records pertaining

to the proceedings against the petitioner, including, but not limited to, the indictment, the

court's journal entries, the journalized records of the clerk of the court, and the court

reporter's transcript.***If the court dismisses the petition, it shall make and file findings

of fact and conclusions of law with respect to such dismissal."

       {¶26} The trial court denied appellant's petition without hearing, finding "the

defendant was sentenced December 7, 2009 and the defendant indeed prosecuted an

appeal. These issues could have or were raised on appeal." Judgment Entry filed

November 30, 2011.

       {¶27} While the trial court did not make specific findings of fact and conclusions

of law per se, the trial court clearly stated its reasoning for denying the petition. As per

our decision in Assignment of Error II, we concur with the trial court's determination. "A

petition for postconviction relief may be dismissed without an evidentiary hearing when

the claims raised are barred by the doctrine of res judicata." State v. Marcum (July 27,

1998), Butler App. No. CA96-12-266, citing State v. Perry, supra.
Licking County, Case No. 11-CA-134                                                  7


       {¶28} Upon review, we find the trial court did not err in denying appellant's

petition without hearing.

       {¶29} Assignment of Error III is denied.

       {¶30} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Farmer, J.

Hoffman, P.J. and

Wise, J. concur.




                                            s/ Sheila G. Farmer__________________




                                            _s/ William B. Hoffman ______________




                                            _s/ John W. Wise___________________


                                                          JUDGES

SGF/sg 615
Licking County, Case No. 11-CA-134                                               8


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT




STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
THOMAS T. HICKMAN                        :
                                         :
       Defendant-Appellant               :         CASE NO. 11-CA-134




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

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

appellant.




                                         s/ Sheila G. Farmer__________________




                                         _s/ William B. Hoffman ______________




                                         _s/ John W. Wise___________________


                                                        JUDGES
