[Cite as State v. Cuthbert, 2019-Ohio-96.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. John W. Wise, P.J
         Plaintiff – Appellee                   Hon. William B. Hoffman, J.
                                                Hon. Craig R. Baldwin, J.
 -vs-
                                                Case No. 18-CA-33
 FRANK M. CUTHBERT

        Defendant – Appellant                   O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Fairfield County Court of
                                                Common Pleas, Case No. 2008-CR-150



 JUDGMENT:                                      Affirmed

 DATE OF JUDGMENT ENTRY:                        January 14, 2019


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 KENNETH W. OSWALT                              FRANK M. CUTHBERT
 Assistant Fairfield County Prosecutor          Inmate No. A588-240
 239 W. Main Street, Suite 101                  Chillicothe Correctional Institution
 Lancaster, Ohio 43130                          P.O. Box 5500
                                                Chillicothe, Ohio 45601
Fairfield County, Case No. 18-CA-33                                                                    2

Hoffman, J.
          {¶1}     Appellant Frank M. Cuthbert appeals the judgment entered by the Fairfield

County Common Pleas Court overruling his verified motion to correct sentence. Appellee

is the state of Ohio.

                                          STATEMENT OF THE CASE1

          {¶2}     On May 9, 2008, the Fairfield County Grand Jury indicted appellant on one

count of rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, one count

of gross sexual imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree,

and one count of weapons under disability in violation of R.C. 2923.13(A)(2), a felony of

the third degree. On August 15, 2008, Appellant entered a plea of guilty to the charges

contained in the indictment.             He was sentenced to an aggregate prison sentence of

nineteen (19) years. Upon appeal to this Court, the judgment of conviction and sentence

was affirmed. State v. Cuthbert, 5th Dist. Fairfield No. 08 CA 75, 2009-Ohio-4856.

          {¶3}     Appellant filed a “motion for re-sentencing based upon void judgment” on

November 2, 2015. The trial court overruled the motion. His appeal to this Court was

dismissed as untimely filed.

          {¶4}     On May 16, 2018, Appellant filed a “verified motion to correct sentence.”

The trial court overruled the motion on June 26, 2018, finding it had previously ruled on

the same issues on November 2, 2015.

          {¶5}     It is from the June 26, 2018 entry overruling his motion to correct sentence

Appellant prosecutes his appeal, assigning as error:




1   A recitation of the facts is unnecessary to our disposition of Appellant’s assignments of error.
Fairfield County, Case No. 18-CA-33                                                    3


             I.    THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

      WHEN IT DENIED APPELLANT CUTHBERT’S PROPERLY FILED

      VERIFIED MOTION TO CORRECT SENTENCE UNDER THE VOID

      SENTENCING DOCTRINE WHEN HIS SENTENCES FAIL TO FOLLOW

      AND INCORPORATE THE MANDATORY STATUTORY REQUIREMENTS

      UNDER O.R.C. 2929.13(F) AND O.R.C. 2929.14(C)(4).

             II.    TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE

      ASSISTANCE OF COUNSEL WHEN FAILING TO OBJECT TO THE

      IMPOSITION OF A VOID SENTENCE THAT DOES NOT INCLUDE THE

      STATUTORY MANDATES AS PRESCRIBED BY THE GENERAL

      ASSEMBLE [SIC] UNDER O.R.C. 299.13(F) AND O.R.C. 2929.14(C)(4),

      SHOULD HAVE ALSO BEEN RAISED ON DIRECT APPEAL.



                                               I.

      {¶6}   Appellant argues the court erred in overruling his motion to correct

sentence. He argues his sentence was void because the trial court failed to make findings

necessary to impose consecutive and mandatory sentences, failed to notify him of his

right to appeal in his sentencing entry, sentenced him disproportionately, and failed to

merge offenses which were allied offenses of similar import.

      {¶7}   We find the trial court’s finding it had previously addressed Appellant’s

claims on November 2, 2015, is inaccurate. The November 2, 2015 motion for re-

sentencing based upon void judgment raised different issues than those raised by
Fairfield County, Case No. 18-CA-33                                                      4


Appellant’s May 16, 2018 motion. However, we find the issues raised in Appellant’s 2018

motion are barred by res judicata based on his failure to raise them on direct appeal.

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

convicted defendant who was represented by counsel from raising and litigating in any

proceeding, except an appeal from the judgment of conviction, 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 the judgment of conviction, or on direct appeal from the

judgment. State v. Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus.

      {¶9}   Appellant first argues the court failed to make findings required by statute

to impose consecutive sentences. At the time Appellant was sentenced, Ohio law did not

require the trial court to make any findings associated with the imposition of consecutive

sentences based on the Ohio Supreme Court’s decision in State v. Foster, 109 Ohio St.3d

1, 2006-Ohio-856, 845 N.E.2d 470. H.B. 86, which revived the statutes requiring the court

to make findings in support of consecutive sentences, was not retroactive. State v. Davis,

5th Dist. Muskingum No. CT2011-0033, 2012-Ohio-4922, ¶37.

      {¶10} Further, even if findings had been necessary, the omission of findings does

not render a sentence void, and Appellant’s argument is barred by res judicata, as it was

required to be raised on direct appeal.        State v. Wofford, 5th Dist. Stark No.

2016CA00087, 2016-Ohio-4628, ¶¶21-23.

      {¶11} Appellant also argues the trial court was required to make findings before

imposing a mandatory sentence. By operation of R.C. 2929.13(F)(2), Appellant’s rape

conviction carried a mandatory sentence, and no factual findings were required to be

made. Rather, the only finding required by the court was legal in nature. See State v.
Fairfield County, Case No. 18-CA-33                                                          5

Willan, 144 Ohio St.3d 94, 2015-Ohio-1475, 41 N.E.3d 3666, ¶16. Furthermore, such

alleged failure could have been raised upon direct appeal and is also now barred by res

judicata.

       {¶12} Appellant argues his sentence was void because the sentencing entry does

not notify him of his right to appeal. A trial court's failure to notify a defendant concerning

appeal rights, however, does not render a sentence void. Smith v. Sheldon, 5th Dist.

Richland No. 18CA47, 2018-Ohio-3233, ¶ 13. This argument is therefore barred by res

judicata. We further note Appellant filed a timely direct appeal from his original judgment

of conviction and sentence.

       {¶13} Appellant argues his sentence is void because the sentence is

disproportionate to his crimes.      The doctrine of res judicata bars consideration of

Appellant's claim he received a disproportionate sentence as such claim could have been

raised on direct appeal. State v. Keith, 12th Dist. Butler No. CA2013-07-131, 2014-Ohio-

169, ¶ 25.

       {¶14} Finally, Appellant argues his sentence is void as he was sentenced for allied

offenses of similar import. This Court has recently discussed the question of whether a

sentence is void based on the imposition of separate sentences for allied offenses:



              The Ohio Supreme Court, in State v. Williams, 148 Ohio St.3d 403,

       2016-Ohio-7658, 71 N.E.3d 234, subsequently extended Fischer somewhat

       by holding that the imposition of separate sentences for allied offenses of

       similar import is contrary to law and such sentences are void. As such, res

       judicata does not preclude a court from correcting those sentences after a
Fairfield County, Case No. 18-CA-33                                                     6

      direct appeal. Id. at ¶ 2. Nonetheless, the Court reiterated that void

      sentence jurisprudence does not apply to challenges to a sentencing court's

      basic determination as to “whether offenses are allied.” Id. at ¶ 24. The

      Court thus stated that “* * * when a trial court finds that convictions are not

      allied offenses of similar import, or when it fails to make any finding

      regarding whether the offenses are allied, imposing a separate sentence for

      each offense is not contrary to law and any error must be asserted in a

      timely appeal or it will be barred by principles of res judicata.” Id. at ¶ 26,

      emphasis added.

             Recently, in State ex rel. Cowan v. Gallagher, ––– N.E.3d ––––,

      2018-Ohio-1463, the Ohio Supreme Court clarified its Williams holding as

      follows: “* * * [A] judgment of sentence is void in one particular

      circumstance: when the trial court determines that multiple counts should

      be merged but then proceeds to impose separate sentences in disregard of

      its own ruling.” Id. at ¶ 20, citing Williams at ¶¶ 28–29.



      {¶15} State v. Franklin, 5th Dist. Stark No. 2017 CA 00170, 2018-Ohio-2904, ¶¶

16-17, appeal not allowed, 154 Ohio St.3d 1423, 2018-Ohio-4496, 111 N.E.3d 21, ¶¶ 16-

17 (2018).

      {¶16} Appellant’s September 29, 2008 sentencing entry is devoid of findings

concerning whether the offenses were allied. Appellant’s claim was therefore required

to be raised on direct appeal, and is now barred by the doctrine of res judicata.

      {¶17} The first assignment of error is overruled.
Fairfield County, Case No. 18-CA-33                                                          7


                                                     II.

       {¶18} In his second assignment of error, Appellant argues trial counsel was

ineffective for failing to object to a void sentence, and appellate counsel was ineffective

for failing to raise the issues he discusses in his first assignment of error on direct appeal.

       {¶19} Appellant’s claim of ineffective assistance of trial counsel could have been

raised on direct appeal, and is therefore barred by res judicata. His claim of ineffective

assistance of appellate counsel was not properly before the trial court. State v. Szerlip,

5th Dist. Knox No. 02CA45, 2003-Ohio-6954, ¶ 28.           The proper avenue for a claim of

ineffective assistance of appellate counsel was through a timely filed motion to reopen

his direct appeal pursuant to App. R. 26(B).

       {¶20} The second assignment of error is overruled.

       {¶21} The judgment of the Fairfield County Common Pleas Court is affirmed.




By: Hoffman, J.
Wise, John, P.J. and

Baldwin, J. concur
