[Cite as State v. Jones, 2013-Ohio-1134.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   William B. Hoffman, J.
                          Plaintiff-Appellee   :   Patricia A. Delaney, J.
                                               :
-vs-                                           :   Case No. 2012 CA 00178
                                               :
                                               :
JEFFREY JONES                                  :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    2010-CR-0458

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             March 22, 2013

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     JEFFREY JONES
Prosecuting Attorney                                Inmate # 600-162
Stark County, Ohio                                  Marion Correctional Institution
                                                    P.O. Box 57
BY: KATHLEEN O. TATARSKY                            Marion, Ohio 43301
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South – Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Jones, 2013-Ohio-1134.]


Hoffman, J.

        {¶1}     Defendant-Appellant Jeffrey Jones appeals the September 10, 2012

Judgment Entry of the Stark County Court of Common Pleas denying his Motion to

Vacate or Set Aside Sentence. Plaintiff-appellee is the state of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On May 18, 2010, the Stark County Grand Jury indicted Appellant on two

counts of felonious assault in violation of R.C. 2903.11(A)(2), felonies of the second

degree, one count of domestic violence in violation of R.C. 2919.25(A), a felony of the

third degree, and one count of intimidation of an attorney, victim or witness in violation

of R.C. 2921.04(B), also a felony of the third degree. The felonious assault counts were

accompanied by firearm specifications. At his arraignment of December 23, 2010,

Appellant entered a plea of not guilty to the charges.

        {¶3}     Subsequently, on January 20, 2011, Appellant withdrew his former not

guilty plea and pleaded guilty to all of the charges contained in the Indictment. As

memorialized in a Judgment Entry filed on January 24, 2011, Appellant was sentenced

to concurrent two (2) year prison terms on each of the four offenses. The trial court also

merged the firearm specifications and imposed a mandatory consecutive three (3) year

sentence on the firearm specification, for an aggregate prison sentence of five (5) years.

        {¶4}     Appellant did not file a direct appeal.

        {¶5}     On January 6, 2012, Appellant filed a Motion to Withdraw Plea. Pursuant

to a Judgment Entry filed on January 27, 2012, such motion was denied.

        {¶6}     Thereafter, on June 4, 2012, Appellant filed a Motion to Vacate and Set

Aside Void Sentence Pursuant to R.C. 2941.25. Appellant, in his motion, argued the trial
Stark County App. Case No. 2012 CA 00178                                                  3


court had failed to merge his conviction for         domestic violence with one of his

convictions for felonious assault because the same were allied offenses of similar

import. Appellant noted the victim with respect to both offenses was his former girlfriend.

       {¶7}   As memorialized in a Judgment Entry filed on September 10, 2012, the

trial court denied Appellant’s motion.

       {¶8}   Appellant now raises the following assignment of error on appeal:

       {¶9}   “TRIAL COURT ERRED WHEN CONVICTING OF CHARGES THAT

WERE TO BE MERGED AS ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT

TO OHIO REVISED CODE 2941.25.”

                                                 I

       {¶10} Appellant, in his sole assignment of error, argues the trial court erred in

denying his Motion to Vacate and Set Aside Sentence. Appellant specifically maintains

the trial court erred in failing to merge his convictions for felonious assault and domestic

violence because both involved the same victim.

       {¶11} Appellant had a prior opportunity to litigate the allied-offenses claims he

sets forth in the instant appeal via a timely direct appeal from the sentencing hearing

and resulting judgment entry dated January 24, 2011. His most recent round of

arguments are, therefore, barred under the doctrine of res judicata. State v. Perry, 10

Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the doctrine as

follows: “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
Stark County App. Case No. 2012 CA 00178                                            4


have been raised by the defendant at the trial which resulted in that judgment of

conviction or on an appeal from that judgment.” Id.

      {¶12} Appellant's argument regarding allied offenses could have been raised on

direct appeal from the trial court's sentencing entry, and res judicata applies even

though Appellant never pursued a direct appeal. State v. Jones, 5th Dist. No. 12CA22,

2012–Ohio–4957, ¶ 23.

      {¶13} Appellant's sole assignment of error is overruled.

      {¶14} The judgment of the Stark County Court of Common Pleas is affirmed.




By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                                  s/ William B. Hoffman _____________



                                                  s/ W. Scott Gwin _________________



                                                  s/ Patricia A. Delaney _____________




WBH/d0305
[Cite as State v. Jones, 2013-Ohio-1134.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :        JUDGMENT ENTRY
                                                  :
JEFFREY JONES                                     :
                                                  :
                        Defendant-Appellant       :        CASE NO. 2012 CA 00178




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

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                                      s/ William B. Hoffman ________________


                                                      s/ W. Scott Gwin ____________________


                                                      s/ Patricia A. Delaney ________________
