[Cite as State v. Dover, 2013-Ohio-2634.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
COURTNEY DOVER                               :       Case No. 2012CA00204
                                             :
                                             :
        Defendant - Appellant                :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Stark County Court
                                                     of Common Pleas, Case No.
                                                     2007CR0153



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    June 17, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

KATHLEEN O. TATARSKY                                 STEPHEN A. GOLDMEIER
Assistant Prosecuting Attorney                       Assistant State Public Defender
Appellate Section                                    250 East Broad Street, Suite 1400
110 Central Plaza South, Suite 150                   Columbus, OH 43215
Canton, OH 44702
Stark County, Case No. 2012CA00204                                                     2



Baldwin, J.

     {¶1}     Appellant Courtney Dover appeals a judgment of the Stark County

Common Pleas Court overruling his motion to “correct and resentence.” Appellee is

the State of Ohio.

                                STATEMENT OF FACTS AND CASE

     {¶2}     On January 12, 2007, Perry Township Police Officer William Watson

responded to the scene of a shooting at the Marc's Plaza on Tuscarawas Street in

Perry Township, Ohio. As he pulled into the parking lot, he saw a man lying on the

ground bleeding from a large wound in the buttocks area. Officer Watson saw no

weapon but taped off the area as a crime scene and asked for the names of any

witnesses. Officers located the injured man's vehicle, still running, in the parking lot.

Sarah Dotson, who was shopping with her daughter, told Officer Watson that she

heard what sounded like a cap gun and saw a man stumble and collapse. She

approached the injured man and determined that he was bleeding. The man requested

that she contact his girlfriend. She then saw a dark car with circular brake lights leave

the parking area. Ms. Dotson called 911.

     {¶3}     The police did not recover a weapon or shell casings from the scene of the

incident. Prior to being taken by ambulance to the hospital, the injured man told police

that “Corey” had shot him.

     {¶4}     The ambulance squad arrived and took the injured man to Aultman

Hospital. The man was identified as George Curlutu, an unemployed felon. In 2000, he

was convicted of possession of cocaine and marijuana and sentenced to three years
Stark County, Case No. 2012CA00204                                                       3


in prison. In 2004, he was convicted of a second count of possessing cocaine and

tampering with evidence. He served a two year prison term.

     {¶5}    Curlutu and appellant were acquaintances and met at St. Mary's Church in

Massillon, Ohio at a Texas Hold-Em tournament. They occasionally played poker and

smoked weed at appellant's residence on 4th Street near the Canton Baptist Temple.

On the day of the shooting, appellant called Curlutu and asked to meet at the Aldi's

parking lot. Sensing a chance to go on a “blunt ride”-where you smoke weed together-.

Curlutu skipped his classes at barber school and met appellant at the parking lot.

Curlutu knew appellant only as “C” or “Corey.”

     {¶6}    Curlutu testified that on the day in question he smoked marijuana. He

further stated that he was under the influence of marijuana at the time of the incident.

Medical records indicated that he also had cocaine and valium in his system. Curlutu

denied being under the influence of those substances. However, he admitted that he

had used narcotics in the days preceding the incident.

     {¶7}    Curlutu pulled into the parking lot and waited for appellant, who arrived

driving a blue Chevrolet Impala with tinted windows. Curlutu noticed a little girl in a car

seat dressed in a pink coat. Curlutu exited his car, leaving the motor running, and got

into appellant's car. Appellant asked Curlutu if he could borrow $300 or $400. Curlutu

told appellant he did not have money like that. Appellant responded by reaching down

to the left hand part of the door and pulling out a longer barrel revolver. Curlutu's first

reaction was to grab the revolver with his left hand. A struggle ensued and the revolver

landed on the car seat. Curlutu opened the car door to run and was shot in the

buttocks.
Stark County, Case No. 2012CA00204                                                       4


      {¶8}    Curlutu fell down and appellant pulled out of the parking lot. Curlutu was

taken to Aultman Hospital. Surgery was performed and eventually a deformed bullet-a

.38 special or .357-caliber bullet-was removed from his buttocks area.

      {¶9}    Detective Matthew Barker of the Perry Township Police Department was

called to the scene to assist in the investigation of the shooting. Detective Barker talked

with Curlutu at the hospital. Curlutu called his friend, Todd McCune, to learn more about

the shooter. Detective Barker learned the shooter's first name was “Courtney,” that he

drove a blue Chevrolet Impala with tinted windows and lived by the Canton Baptist

Temple. Detective Barker also learned that the shooter's cell phone number was (330)

371-3453 and that he had purchased the phone or minutes for the phone at Hever's

Meats. Armed with the cell phone number, Detective Barker went to Hever's Meats and

learned that the cell phone number belonged to appellant, and that his address was

4456 4th Street N.W., Perry Township, Ohio. Curlutu showed Detective Barker the

residence where the shooter resided and it matched the address of appellant that

Detective Barker had obtained from Hever's Meats.

      {¶10}   Detective Barker placed a photograph of appellant in a photo lineup with

five other males with the same physical characteristics. Two days after the shooting,

Curlutu identified appellant's photograph as the shooter and told Detective Barker that

he was 100 percent sure of his identification.

      {¶11}   Detective Barker went to the home on 4th Street identified as appellant's

residence. Detective Barker saw signs that someone was home. He knocked on the

door but received no response. Thirty minutes later Tammy Young, appellant's girlfriend

and mother of his one-year-old daughter, came home. Ms. Young gave Detective
Stark County, Case No. 2012CA00204                                                       5


Barker permission to enter the home. Inside the home Detective Barker found appellant

carrying a blue cell phone with a telephone number (330) 371-3453. Detective Barker

also collected from the home three coats or jackets belonging to appellant and a box of

Winchester .38-caliber ammunition. A blue Chevrolet Impala belonging to Ms. Young

was also at the residence. Ms. Young testified the appellant had keys to the car. Ms.

Young told the police that she was at work at the time of the incident. The appellant was

watching their child when she left, but could have taken the child to a baby sitter.

      {¶12}    The three coats or jackets belonging to appellant were taken from the

home and sent to the Stark County Crime Laboratory for DNA testing. Officers also

obtained and sent to the Crime Laboratory oral swabs from the victim for comparison.

Kylie Graham, a technician with the laboratory compared three areas of bloodstains on

a gold coat belonging to appellant with the oral swabs taken from the inner cheek of

Curlutu. Graham opined that the bloodstains on the coat matched Curlutu's blood in

three areas.

      {¶13}    Appellant was indicted by the Stark County Grand Jury on charges of

felonious assault (R.C. 2903.11(A)(1) and/or (A)(2)), improperly handling firearms in a

motor vehicle (R.C. 2923.16(B)) and endangering children (R.C. 2919.22(A)).            The

felonious assault charged carried a firearm specification. Appellant was convicted of all

charges following jury trial in the Stark County Common Pleas court. The trial court

imposed a seven year sentence for felonious assault, a 17 month sentence for

improperly handling a firearm in a motor vehicle, and a 180 day sentence for

endangering children, with all sentences to run concurrently.        In addition, appellant
Stark County, Case No. 2012CA00204                                                         6


received a three year mandatory sentence on the firearm specification, to run

consecutively, for an aggregate term of ten years incarceration.

      {¶14}   Appellant filed a direct appeal. This Court affirmed. State v. Dover, 5th

Dist. No. 2007CA00140, 2008-Ohio-1071. On May 23, 2011, appellant filed a motion to

correct his sentence, arguing that the offenses were allied offenses of similar import.

The trial court overruled the motion, and appellant did not file an appeal. Appellant filed

another motion to correct his sentence on August 15, 2011, arguing that the jury verdict

form was faulty because it did not name the degree of the felony. The trial court treated

this petition as a petition for postconviction relief and found the issue to be res judicata.

This court affirmed. State v. Dover, 5th Dist. No. 2011CA00193, 2012-Ohio-1181.

      {¶15}   On October 1, 2012, appellant filed another motion to “correct and

resentence,” arguing again that the offenses were allied offenses and that the verdict

form did not state the degree of the felony.        The trial court overruled the motion.

Appellant assigns a single error on appeal:

      {¶16}   THE TRIAL COURT ERRED WHEN IT DENIED, WITHOUT A HEARING,

MR. DOVER’S MOTION REQUESTING MERGER OF HIS CONVICTIONS FOR

ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C. 2941.25.

      {¶17}   In State v. Perry, 10 Ohio St.2d 175, 180, 226 N .E.2d 104 (1967), the

Ohio Supreme Court stated, “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 have been raised by the defendant at the trial which resulted in

that judgment of conviction or on an appeal from that judgment.”
Stark County, Case No. 2012CA00204                                                    7


      {¶18}   Appellant could have raised the issue of merger of the offenses as allied

offenses of similar import on direct appeal and failed to do so. The issue is now barred

by res judicata.

      {¶19}   Appellant argues that he should be resentenced under the merger

standard announced by the Ohio Supreme Court in State v. Johnson, 128 Ohio St. 3d

153, 2010-Ohio-6314, 942 N.E.2d 1061. The Ohio Supreme Court's holding in Johnson

does not apply retroactively. State v. Holliday, 5th Dist. No. 11CAA110104, 2012-Ohio-

2376, ¶16.     A new judicial ruling may be applied only to cases pending on the

announcement date. Id. 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.   Id., citing Ali v. State, 104 Ohio St.3d 328, 2004–Ohio–6592.

Appellant had exhausted his appellate remedies in 2008, before the Ohio Supreme

Court announced the Johnson decision in 2010.           The merger test announced in

Johnson therefore does not apply to appellant’s case.
Stark County, Case No. 2012CA00204                                               8




     {¶20}   The assignment of error is overruled. The judgment of the Stark County

Common Pleas Court is affirmed.



By: Baldwin, J.

Wise, P.J. and

Delaney, J. concur.




                                     HON. CRAIG R. BALDWIN



                                     HON. JOHN W. WISE



                                     HON. PATRICIA A. DELANEY
[Cite as State v. Dover, 2013-Ohio-2634.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff - Appellee                   :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
COURTNEY DOVER                                 :
                                               :
        Defendant - Appellant                  :       CASE NO. 2012CA00204


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs

assessed to appellant.




                                            HON. CRAIG R. BALDWIN



                                            HON. JOHN W. WISE



                                            HON. PATRICIA A. DELANEY
