[Cite as State v. Scott, 2018-Ohio-2361.]



                                      IN THE COURT OF APPEALS

                             TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




 STATE OF OHIO,                                   :

        Plaintiff-Appellee,                       :     CASE NO. CA2017-10-152

                                                  :             OPINION
     - vs -                                                      6/18/2018
                                                  :

 JAMES SCOTT, JR.,                                :

        Defendant-Appellant.                      :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 05 CR 22106



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, OH 45036, for plaintiff-appellee

James Scott, Jr., #A665564, London Correctional Institution, 1580 State Route 56 SW,
London, Ohio 43140, pro se



        S. POWELL, P.J.

        {¶ 1} Defendant-appellant, James Scott, Jr., appeals from the decision of the

Warren County Court of Common Pleas denying his motion to correct his allegedly void

sentence upon finding his request was barred by the doctrine of res judicata. For the

reasons outlined below, we affirm.

        {¶ 2} On February 25, 2005, the Warren County Grand Jury returned a nine-count
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indictment charging Scott with multiple counts of trafficking and possession of cocaine and

crack cocaine, four of which carried a major drug offender specification.         The matter

ultimately proceeded to a two-day jury trial. At trial, evidence was presented indicating local

law enforcement officers discovered multiple packages containing over 1,100 grams of

cocaine and nearly 450 grams of crack cocaine in Scott's home at the time of his arrest.

After the case was submitted to the jury for deliberation, but prior to the jury returning its

verdict, Scott absconded. The jury then returned a verdict finding Scott guilty of all nine

charged offenses.

       {¶ 3} Over six years later, Scott was apprehended and brought before the trial court

for sentencing. At sentencing, the trial court sentenced Scott to serve an aggregate 18-

year prison term, 12 of those years being mandatory. In imposing that sentence, after

merging counts six through eight, the trial court ordered counts two through five, and count

nine to run concurrently to one another, with count one running consecutive to all other

counts.   The trial court also ordered Scott to pay mandatory fines totaling $27,500,

suspended Scott's driver's license for a period of five years, and notified Scott that he would

be subject to a mandatory five-year postrelease control term.

       {¶ 4} Scott then appealed. As part of his appeal, Scott raised three assignments of

error for review alleging he received ineffective assistance of counsel, that the trial court

erred by denying his Crim.R. 29 motion for acquittal, and that his sentence for count one

exceeded the applicable sentencing range for that offense in accordance with 2011

Am.Sub.H.B. No. 86. Finding no merit to any of Scott's three assignments of error, this

court affirmed Scott's conviction and sentence in State v. Scott, 12th Dist. Warren CA2012-

06-052, 2013-Ohio-2866.

       {¶ 5} On August 2, 2017, over four years after this court issued our decision

affirming Scott's conviction and sentence, Scott filed a motion requesting the trial court

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correct his allegedly void sentence. In support of this motion, Scott claimed the trial court

erred by failing to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to

imposing a consecutive sentence at his sentencing hearing. The trial court denied Scott's

motion upon finding his request was barred by the doctrine of res judicata. Scott now

appeals from the trial court's decision, raising the following single assignment of error for

review.

        {¶ 6} TRIAL COURT ERRED BY FAILING TO MAKE THE REQUISITE

STATUTORY FINDINGS PURSUANT TO O.R.C. 2929.14(C)(4), PRIOR TO IMPOSING

CONSECUTIVE SENTENCING, VIOLATING APPELLANT'S RIGHT OF DUE PROCESS

OF LAW, AS GUARANTEED BY THE 5TH AND 14TH AMENDMENT, UNITED STATES

CONSTITUTION; SECTION 16, ARTICLE 1, OHIO CONSTITUTION.

        {¶ 7} In his single assignment of error, Scott argues the trial court erred by denying

his motion to correct his allegedly void sentence, which we construe as a petition for

postconviction relief; specifically, Scott argues the trial court erred by failing to make the

requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing a consecutive sentence

at his sentencing hearing, thereby rendering his sentence void.1 We disagree.

        {¶ 8} Contrary to Scott's claim otherwise, "[t]he Ohio Supreme Court has declined

to find sentences void based on the court's failure to comply with certain sentencing

statutes, including the consecutive sentencing statute." State v. Sanders, 9th Dist. Summit

No. 27189, 2014-Ohio-5115, ¶ 5, citing State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-

5014, ¶ 8 (challenges to a sentencing court's judgment as to whether sentences must be

served concurrently or consecutively must be presented in a timely direct appeal).




1. Construing Scott's motion to correct his allegedly void sentence as a petition for postconviction relief, we
note that such motion was filed well outside the time requirements found in R.C. 2953.21(A)(2). For purposes
of this appeal, however, we will assume Scott's motion was timely filed.
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Therefore, because the failure to make the required statutory findings before imposing

consecutive sentences does not render a sentence void, the principles of res judicata apply.

State v. Lindsey, 12th Dist. Fayette No. CA2016-04-006, 2017-Ohio-331, ¶ 6.

       {¶ 9} Under the doctrine of res judicata, a defendant cannot raise an issue in a

postconviction petition if he or she raised or could have raised the issue before the trial

court. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92. Thus, pursuant to the

doctrine of res judicata, "a defendant cannot raise an issue in a motion for postconviction

relief if he or she could have raised the issue on direct appeal." State v. Reynolds, 79 Ohio

St.3d 158, 161 (1997). This applies to claims alleging the trial court erred in imposing

consecutive sentences. See, e.g., State v. Chapin, 10th Dist. Franklin No. 14AP-1003,

2015-Ohio-3013, ¶ 8-10 (appellant's motion for resentencing claiming the trial court erred

in imposing consecutive sentences was barred by the doctrine of res judicata where

appellant did not file a direct appeal but a motion for resentencing after his time to appeal

had expired).

       {¶ 10} In light of the foregoing, we find no error in the trial court's decision denying

Scott's motion to correct his allegedly void sentence, which, as noted above, we construe

as a petition for postconviction relief, as Scott's claim alleging the trial court erred by failing

to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing a

consecutive sentence at his sentencing hearing is barred by the doctrine of res judicata.

State v. Wolfe, 5th Dist. Delaware No. 16CAA020008, 2016-Ohio-4616, ¶ 21-25 (res

judicata applied to bar appellant's motion to correct sentence alleging trial court erred by

imposing consecutive sentences where claim was not raised in a direct appeal). "A petition

for postconviction relief is not a substitute for a direct appeal nor a means of an additional

or supplementary direct appeal of a conviction and sentence." State v. Russell, 8th Dist.

Cuyahoga No. 103604, 2016-Ohio-1230, ¶ 11. Therefore, because we find no error in the

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trial court's decision denying Scott's motion to correct his allegedly void sentence upon

finding his request was barred by the doctrine of res judicata, Scott's single assignment of

error is without merit and overruled.

       {¶ 11} Judgment affirmed.


       RINGLAND and HENDRICKSON, JJ., concur.




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