[Cite as State v. Krisha, 2016-Ohio-3512.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


STATE OF OHIO,                                    :      OPINION

                 Plaintiff-Appellee,              :
                                                         CASE NOS. 2015-L-125,
        - vs -                                    :                2015-L-126
                                                               and 2015-L-127
DOMINICK J. KRISHA,                               :

                 Defendant-Appellant.             :



Criminal Appeal from the Lake County Court of Common Pleas, Case Nos. 11 CR
000595, 13 CR 000274, and 13 CR 000597.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Dominick J. Krisha, pro se, PID# A644-745, Lake Erie Correctional Institution, P.O.
Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).



DIANE V. GRENDELL, J.

        {¶1}     Defendant-appellant, Dominick J. Krisha, appeals the imposition of

consecutive sentences in three criminal prosecutions described in further detail below.

The determinative issue before this court is whether an offender is barred by res

judicata from raising errors regarding the imposition of consecutive sentences in post-
conviction proceedings. For the following reasons, we affirm the decision of the court

below.

         {¶2}   In State v. Krisha, Lake C.P. No. 11-CR-000595, Krisha entered a plea of

“Guilty” by way of Information to one count of Trafficking in Marijuana, a felony of the

fifth degree in violation of R.C. 2925.03(A)(1), and one count of Possession of Heroin, a

felony of the fourth degree in violation of R.C. 2925.11. On February 1, 2012, Krisha

was sentenced to three years of community control.          On August 28, 2013, Krisha

entered a plea of “Guilty” to the charge of violating the terms of his community control.

         {¶3}   In State v. Krisha, Lake C.P. No. 13-CR-000274, Krisha entered a plea of

“Guilty” by way of Information to one count of Trafficking in Heroin, a felony of the fourth

degree in violation of R.C. 2925.03(A)(1).

         {¶4}   In State v. Krisha, Lake C.P. No. 13-CR-000597, Krisha entered a plea of

“Guilty” by way of Information to one count of Possession of Heroin, a felony of the first

degree in violation of R.C. 2925.11.

         {¶5}   On October 8, 2013, Krisha was sentenced to serve an aggregate prison

term of ten years for all three cases. The particulars of Krisha’s sentences are as

follows:

         {¶6}   In State v. Krisha, Lake C.P. No. 11-CR-000595, Krisha was sentenced to

serve consecutive terms of nine months in prison for Trafficking in Marijuana and fifteen

months in prison for Possession of Heroin, for a prison sentence of twenty-four months.

Krisha was furthered ordered to serve the twenty-four-month sentence consecutively

with the sentences imposed in Lake C.P. Nos. 13-CR-000597 and 13-CR-000274.




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      {¶7}   In State v. Krisha, Lake C.P. No. 13-CR-000274, Krisha was sentenced to

serve a prison term of one year for Trafficking in Heroin. Krisha was further ordered to

serve the one-year sentence concurrently with the sentence imposed in Lake C.P. No.

13-CR-000597 and consecutively with the sentence imposed in Lake C.P. No. 11-CR-

000595.

      {¶8}   In State v. Krisha, Lake C.P. No. 13-CR-000597, Krisha was sentenced to

serve a prison term of eight years for Possession of Heroin. Krisha was further ordered

to serve the eight-year sentence concurrently with the sentence imposed in Lake C.P.

No. 13-CR-000274 and consecutively with the sentence imposed in Lake C.P. No. 11-

CR-000595.

      {¶9}   The sentencing court made the following findings in each case:

             Pursuant to R.C. 2929.14(C)(4) and R.C. 2929.19(B)(2)(b), the

             Court finds for the reasons stated on the record that consecutive

             sentences are necessary to protect the public from future crime or

             to punish the Defendant and are not disproportionate to the

             Defendant’s conduct and the danger the Defendant poses to the

             public, that the Defendant committed one or more of the multiple

             offenses while under a sanction pursuant to R.C. 2929.16, 2929.17,

             or 2929.18 and the Defendant’s history of criminal conduct

             demonstrates that consecutive sentences are necessary to protect

             the public from future crime by the Defendant.

      {¶10} On September 23, 2015, Krisha filed, in all three cases, a Motion

Requesting Resentencing pursuant to R.C. §2929.41.            Krisha contended “that his




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consecutive sentences are void and constituted an abuse of discretion and violated

protections guaranteed under provisions of the double jeopardy clause of the Fifth

Amendment.”

       {¶11} On October 13, 2015, the State filed its Response.

       {¶12} On October 21, 2015, the trial court entered an Opinion and Judgment

Entry, denying Krisha’s Motion Requesting Resentencing. The court stated that it was

without authority to modify a sentence once it has been executed, i.e., “when the

defendant is delivered to prison.” The court further stated that “the sentencing entries

demonstrate that this court made the findings required by R.C. 2929.14 and R.C.

2929.19 before imposing consecutive sentences.”

       {¶13} On November 18, 2015, Krisha filed Notices of Appeal in all three cases.

       {¶14} On December 2, 2015, this court sua sponte consolidated the appeals for

all purposes.

       {¶15} On appeal, Krisha raises the following assignment of error:

       {¶16} “[1.] The trial court erred to the prejudice of the defendant-appellant and

abused its discretion when it denied his Motion Requesting Resentencing pursuant to

R.C. 2929.41(A) without a hearing.”

       {¶17} Krisha argues that the “sentencing court * * * made some, but not all of the

statutorily required findings before it imposed the consecutive sentences,” specifically,

“it failed to state on the record that it considered the mandatory language of R.C.

§2929.41(A) as to imposing concurrent sentences instead of consecutive sentences.”

Appellant’s brief at 5.




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       {¶18} Consideration of Krisha’s argument on appeal is barred by his failure to

file a direct appeal from the October 8, 2013 sentencing entries and by the doctrine of

res judicata.

       {¶19} “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 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.”

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

syllabus.

       {¶20} “Arguments challenging the imposition of a sentence that is voidable are

barred by the doctrine of res judicata if not raised on direct appeal.” State v. Britta, 11th

Dist. Lake No. 2011-L-041, 2011-Ohio-6096, ¶ 17, citing State v. Simpkins, 117 Ohio

St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 30 (res judicata “operate[s] to prevent

consideration of a collateral attack based on a claim that could have been raised on

direct appeal from the voidable sentence”).

       {¶21} Errors in the imposition of consecutive sentences, such as the failure to

make the required statutory findings, render the sentences voidable, rather than void.

State v. Wilson, 11th Dist. Lake No. 2015-L-067, 2015-Ohio-5465, ¶ 19; State v.

Bowshier, 2d Dist. Clark No. 2015-CA-53, 2016-Ohio-1416, ¶ 16 (“the Supreme Court of

Ohio ‘has declined to find sentences void based on the court’s failure to comply with

certain sentencing statutes, including the consecutive sentencing statute’”) (citation

omitted).




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      {¶22} As the Ohio Supreme Court has explained:

             [C]hallenges to a trial court’s compliance with R.C. 2929.11 and

             2929.12, which may be brought by either the defendant or the

             state, must still be presented in a timely direct appeal under R.C.

             2953.08. R.C. 2953.08(E); see generally State v. Kalish, 120 Ohio

             St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. This is also true with

             regard to challenges to a sentencing court’s determination whether

             offenses are allied and its judgment as to whether sentences must

             be served concurrently or consecutively. See generally State v.

             Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061;

             State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d

             768.

State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8.

      {¶23} The sole assignment of error is without merit.

      {¶24} For the foregoing reasons, the imposition of consecutive sentences in

State v. Krisha, Lake C.P. No. 11-CR-000595, State v. Krisha, Lake C.P. No. 13-CR-

000274, and State v. Krisha, Lake C.P. No. 13-CR-000597, is affirmed. Costs to be

taxed against appellant.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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