[Cite as State v. Hare, 2013-Ohio-3102.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 13 CAA 01 0008
MONTY SCOTT HARE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Delaware County Court of
                                               Common Pleas, Case No. 05 CR I 01 0047


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         July 15, 2013


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


CAROL HAMILTON O'BRIEN                         KATHERINE A. SZUDY
BRIAN J. WALTER                                Assistant State Public Defender
Assistant Prosecuting Attorney                 250 East Broad Street, Suite 1400
Delaware County Prosecutor's Office            Columbus, Ohio 43215
140 North Sandusky Street
Delaware, Ohio 43015
Delaware County, Case No. 13 CAA 01 0008                                                        2

Hoffman, P.J.


         {¶1}   Defendant-appellant Monty Scott Hare appeals the judgment entered by

the Delaware County Court of Common Pleas denying his motion for an allied-offense

analysis. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   Appellant was convicted on two counts of kidnapping, and one count each

of domestic violence, theft, receiving stolen property, burglary, aggravated menacing,

and abduction. Appellant filed a notice of appeal with this court. While his direct appeal

was pending, Appellant also filed with the trial court a petition for post-conviction relief.

         {¶3}   On July 27, 2006, this court announced its opinion in Appellant's direct

appeal, State v. Hare, 5th Dist. No. 05CAA06038, 2006-Ohio-3926. In that opinion, we

affirmed Appellant's convictions, but reversed his sentence, citing State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. We remanded the matter to the trial

court for re-sentencing.

         {¶4}   Appellant was re-sentenced by the trial court on August 14, 2006. As

memorialized by the judgment entry filed on August 15, 2006, Appellant was sentenced

to a total of twelve years in prison. The trial court also found Appellant was able to work

and ordered Appellant to pay “all prosecution costs, court-appointment counsel costs

and any fees permitted pursuant to R .C. 2929.18(A)(4), for which, all sums judgment is

hereby rendered.” Judgment Entry, August 15, 2006.

         {¶5}   The trial court also denied Appellant's petition for post-conviction relief. On

October 20, 2006, the trial court made findings of fact and conclusions of law, finding

1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 13 CAA 01 0008                                                    3


Appellant's petition was barred by the principles of res judicata because this court had

already ruled on the issues Appellant raised.

        {¶6}   Appellant filed an affidavit of indigency with the trial court on November

20, 2006. Appellant filed an appeal of the trial court's decision to deny his petition for

post-conviction relief. We affirmed the trial court's decision in State v. Hare, 5th Dist. No.

06-CAA-11-0088, 2007-Ohio-2802.

        {¶7}   On January 4, 2008, Appellant filed a motion for writ of coram vobis with

the trial court to prohibit the Clerk of Courts from assessing or collecting court costs in

his underlying criminal case (Case No. 05CR-I-01-0047) and the appeal of the denial of

his petition for post-conviction relief (Case No. 06-CAA-11-0088). The trial court denied

his motion, finding the trial court was permitted to assess costs and the Clerk of Courts

could attempt to collect those costs from an indigent defendant. Judgment Entry, Jan.

22, 2008.

        {¶8}   Appellant filed a notice of appeal of the decision and affidavit of indigency

on February 28, 2008. This court dismissed Appellant's appeal on March 18, 2008 for

being untimely filed. Appellant filed a motion for leave to file a delayed appeal. We

granted Appellant's motion on April 18, 2008. On June 25, 2008, we affirmed the trial

court's denial of the motion in State v. Hare, 5th Dist. No. 08-CAA-02-0005, 2008-Ohio-

3127.

        {¶9}   On December 13, 2012, Appellant filed a motion requesting the trial court

conduct an allied-offense analysis as to Appellant's burglary and kidnapping

convictions. Appellant maintains since his conviction, Ohio's case law regarding allied
Delaware County, Case No. 13 CAA 01 0008                                                   4

offenses has changed, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.

Via Judgment Entry of January 9, 2013, the trial court denied the motion.

       {¶10} Appellant now appeals assigning as error:

       {¶11} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED MONTY HARE’S

DECEMBER 13, 2012 MOTION REQUESTING THAT THE DELAWARE COUNTY

COURT OF COMMON PLEAS CONDUCT AN ALLIED-OFFENSE ANALYSIS AS TO

MR. HARE’S BURGLARY AND KIDNAPPING CONVICTIONS.”

       {¶12} Appellant's conviction and sentence were final on June 25, 2008. The

Ohio Supreme Court's holding in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, does not apply retroactively. See, State v. Holliday, 5th Dist. No. 11CAA110104,

2012-Ohio-2376; State v. Hickman, 5th Dist. 11CA54, 2012-Ohio-2182, citing State v.

Parson, 2nd Dist. 24641, 2012–Ohio–730.

       {¶13} 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.

       {¶14} Accordingly, we find Appellant's arguments are barred by res judicata as

they were capable of being raised on direct appeal, and his reliance on Johnson is

misplaced as his conviction and sentence were already final prior to the date the

Supreme Court pronounced its holding therein.

       {¶15} Appellant's sole assignment of error is overruled.
Delaware County, Case No. 13 CAA 01 0008                                      5


      {¶16} The judgment of the Delaware Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur

                                         ___________________________________
                                         HON. WILLIAM B. HOFFMAN


                                         ___________________________________
                                         HON. PATRICIA A. DELANEY


                                         ___________________________________
                                         HON. CRAIG R. BALDWIN
Delaware County, Case No. 13 CAA 01 0008                                        6


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MONTY SCOTT HARE                           :
                                           :
       Defendant-Appellant                 :         Case No. 13 CAA 01 0008


       For the reason stated in our accompanying Opinion, the judgment of the

Delaware Court of Common Pleas is affirmed. Costs to Appellant.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
