[Cite as State v. Pulliam, 2017-Ohio-127.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               SCIOTO COUNTY

STATE OF OHIO,                  :
                                :   Case No. 16CA3759
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
LENWARD PULLIAM,                :
                                :
     Defendant-Appellant.       :   Released: 01/13/17
_____________________________________________________________
                          APPEARANCES:

Lenward Pulliam, London, Ohio, Pro Se Appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto
County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Scioto County Common Pleas Court

judgment denying Appellant Lenward Pulliam’s motion for re-sentencing.

On appeal, Appellant contends that 1) the trial court erred by failing to make

the statutory findings required before imposing consecutive sentences; 2) the

trial court erred in failing to grant his motion for re-sentencing and by failing

to hold a merger hearing as to counts three and five; and 3) the trial court

erred by not making findings as to the major drug offender portion of his

sentence. We find all of Appellant’s arguments are barred by the doctrine of
Scioto App. No. 16CA3759                                                        2

res judicata and we do not reach the merits of this case. Accordingly, the

decision of the trial court is affirmed.

                                     FACTS

      {¶2} We set forth the facts as determined previously in Appellant’s

direct appeal of this matter. Appellant, Lenward Pulliam, was indicted on

February 1, 2013 on a multi-count felony indictment containing thirteen

felony counts involving possession and trafficking in drugs (cocaine, heroin,

oxycodone, oxymorphone, hydrocodone, and alprazolam), as well as one

count of tampering with evidence. As a result of plea negotiations,

Appellant entered into a plea agreement that included an agreed sentence of

eighteen years, which required Appellant to plead guilty to two of the first-

degree felony counts (trafficking in heroin and trafficking in oxycodone,

with a major drug offender specification), in exchange for the State’s

dismissal of the remaining eleven counts contained in the indictment. Upon

the acceptance of Appellant’s guilty pleas, the trial court sentenced

Appellant, as recommended and agreed, to eighteen years in prison, which

consisted of an eleven-year term and a seven-year term, to be served

consecutively.

      {¶3} Appellant appealed his convictions and sentences, arguing that

the trial court erred when it imposed consecutive sentences without making
Scioto App. No. 16CA3759                                                        3

the required findings pursuant to R.C. 2929.14. He also raised an ineffective

assistance of counsel argument, claiming that his counsel failed to argue

strong, mitigating factors at sentencing. We found that because Appellant’s

sentence was imposed pursuant to a negotiated plea agreement which

included an agreed sentence, it was not subject to appellate review under

R.C. 2953.08(D), and therefore we overruled both of Appellant’s

assignments of error and affirmed the decision of the trial court. State v.

Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759, ¶ 2.

      {¶4} Thirteen months later, Appellant filed a motion in the trial court

entitled “Defendant’s Motion for Re-Sentencing Pursuant to Crim.R. 52(B)

Sentence Contrary to Law failing to hold a Merger Hearing.” Appellant’s

motion contained three arguments. The first argument related to the trial

court’s imposition of consecutive sentences. The second argument related to

the trial court’s imposition of consecutive sentences for what Appellant

claimed were allied offenses of similar import, without holding a merger

hearing. Appellant’s third argument claimed that the trial court failed to

make necessary findings before imposing sentence on the mandatory drug

offender portion of Appellant’s sentence.

      {¶5} On May 24, 2016, the trial court issued a judgment entry denying

Appellant’s motion for re-sentencing. The trial court denied Appellant’s
Scioto App. No. 16CA3759                                                         4

consecutive sentencing and mandatory drug offender arguments on their

merits and held that Appellant’s allied offenses argument was barred by res

judicata as it should have been raised on direct appeal. It is from this order

that Appellant now brings his current appeal, setting forth three assignments

of error for our review.

                           ASSIGNMENTS OF ERROR

“I.    THE TRIAL COURT ERRED BY FAILING TO MAKE
       STATUTORY FINDINGS AS TO THE CONSECUTIVE
       SENTENCES, PURSUANT TO R.C. 2929.14(C)(4) WHEN
       IMPOSING CONSECUTIVE SENTENCES.

II.    THE TRIAL COURT ERRED IN FAILING TO GRANT
       DEFENDANT’S MOTION FOR RE SENTENCING [SIC]
       PURSUANT TO CRIM.R. 52(B) SENTENCE CONTRARY TO
       LAW AND BY FAILING TO HOLD A MERGER HEARING AS
       TO COUNTS {3} THREE AND COUNTS {5} FIVE OF THE
       INDICTMENT.

III.   THE TRIAL COURT ERRED BY NOT MAKING FINDINGS AS
       TO THE MAJOR DRUG OFFENDERS [SIC] SENTENCE,
       PURSUANT TO R.C. 2929.19 AT SENTENCING.”

                           STANDARD OF REVIEW

       {¶6} As Appellant’s current appeal stems from the trial court’s denial

of his post-conviction motion for re-sentencing, and because each of his

current arguments challenge the trial court’s imposition of sentence in

connection with his original convictions, we set forth our standard of review

when reviewing felony sentences. When reviewing felony sentences we
Scioto App. No. 16CA3759                                                         5

apply the standard of review set forth in R.C. 2953.08(G)(2). State v. Taylor,

138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 40; State v. Marcum,

2016-Ohio-1002, –––N.E.3d ––––, ¶ 1. R.C. 2953.08(G)(2) specifies that an

appellate court may increase, reduce, modify, or vacate and remand a

challenged felony sentence if the court clearly and convincingly finds either

that “the record does not support the sentencing court's findings” under the

specified statutory provisions or “the sentence is otherwise contrary to law.”

Id.

                        ASSIGNMENT OF ERROR I

      {¶7} In his first assignment of error, Appellant contends that the trial

court erred by failing to make the statutory findings required by R.C.

2929.14 before imposing consecutive sentences. The State contends that

Appellant’s argument is barred by the doctrine of res judicata, as the

argument was already raised in Appellant’s direct appeal. Based upon the

following, we agree with the State.

      {¶8} The current appeal stems from the denial of a post-conviction

motion for re-sentencing. A review of the record indicates that Appellant

raised an argument identical to this argument in his direct appeal of this

matter. As noted above, we denied the argument based upon the fact that

Appellant’s consecutive sentences were imposed pursuant to a negotiated
Scioto App. No. 16CA3759                                                        6

plea agreement, which included an agreed sentence, and as such was not

subject to appellate review under R.C. 2953.08(D). State v. Pulliam, supra,

at ¶ 2.

          {¶9} Subsequent to the issuance of that decision, the Eleventh District

Court of Appeals certified a conflict to the Supreme Court of Ohio between

itself and the Fourth and Second Districts on the following issue:

          “In the context of a jointly-recommended sentence, is the trial
          court required to make consecutive-sentence findings under
          R.C. 2929.14(C) in order for its sentence to be authorized by
          law and thus not appealable?” State v. Sergent, 2015-Ohio-
          2603, 38 N.E.3d 461, ¶ 36 (11th Dist.)

The Supreme Court of Ohio addressed the conflict in State v. Sergent, 2016-

Ohio-2696, -- N.E.3d --, and answered the question in the negative, finding

“that such a sentence is ‘authorized by law’ and not appealable. Thus, the

reasoning we employed in denying this argument in Appellant’s direct

appeal of this matter has been declared valid and sound.

          {¶10} “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 trial, which resulted in that

judgment of conviction, or on an appeal from that judgment.” State v.
Scioto App. No. 16CA3759                                                         7

Szefcyk, 77 Ohio St.3d 93, 1996-Ohio-337, 671 N.E.2d 233, syllabus. Here,

Appellant clearly raised an argument identical to this one in his direct appeal

of this matter. As such, he is barred under the doctrine of res judicata from

attempting to re-litigate that issue now. Accordingly, his first assignment of

error is overruled.

                       ASSIGNMENT OF ERROR II

      {¶11} In his second assignment of error, Appellant contends that the

trial court erred in failing to grant his motion for re-sentencing, which

argued that his consecutive sentences were contrary to law as they were

allied offenses of similar import, and that the trial court should have held a

merger hearing. Appellant specifically contends that the two counts to

which he pled guilty, count three, trafficking in drugs/heroin, and count five,

trafficking in drugs/oxycodone/major drug offender, constituted allied

offenses of similar import which should have merged for purposes of

sentencing. The State contends that this argument is barred by the doctrine

of res judicata because the argument could have been raised on direct appeal,

but was not. Once again, we agree with the State.

      {¶12} Although this Court has acknowledged that “[a] criminal

defendant has the right to appeal the issue of allied offenses under R.C.

2941.25, even if the defendant entered into a plea bargain and even if the
Scioto App. No. 16CA3759                                                      8

sentence was an agreed sentence under R.C. 2953.08(D)[,]” the Supreme

Court of Ohio has recently reaffirmed that:

      “when a trial court finds that convictions are not allied offenses
      of similar import, or when it fails to make any finding
      regarding whether the offenses are allied, imposing a separate
      sentence for each offense is not contrary to law, and any error
      must be asserted in a timely appeal or it will be barred by
      principles of res judicata.” State v. Pigge, 4th Dist. Ross No.
      09CA3136, 2010-Ohio-6541, ¶ 38; citing State v. Underwood,
      124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph
      one of the syllabus. State v. Williams, 2016-Ohio-7658, --
      N.E.3d--, ¶ 26; relying on State v. Holdcroft, 137 Ohio St.3d
      526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8-9. (Emphasis added).

As we have discussed, Appellant already had a direct appeal of his

convictions and sentences. He raised no arguments in his direct appeal

related to the trial court’s failure to hold a merger hearing. Further, although

he did argue in his direct appeal that the trial court erred in imposing

consecutive sentences, he did not argue that the consecutive sentences were

improper because his offenses were allied offenses of similar import.

      {¶13} As set forth above, the doctrine of res judicata “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 trial, which resulted in that judgment of conviction, or on an

appeal from that judgment.” State v. Szefcyk, supra, at syllabus. Because
Scioto App. No. 16CA3759                                                                                     9

Appellant failed to raise an allied offenses argument as part of his direct

appeal, the argument is barred by the doctrine of res judicata and he cannot

raise it now on appeal from the denial of his motion for re-sentencing. This

result is consistent with the result in State v. Holdcroft, supra, the reasoning

of which was recently reaffirmed in State v. Williams, supra.1 Accordingly,

Appellant’s second assignment of error is overruled.2

                                ASSIGNMENT OF ERROR III

         {¶14} In his third assignment of error, Appellant contends that the

trial court erred by not making findings as to the major drug offender portion

of his sentence, pursuant to R.C. 2929.19 at sentencing. The State contends

that R.C. 2929.19 does not require any specific findings be made before

imposing sentence for a major drug offender specification, and points out

that Appellant pleaded guilty to the felony that included the major drug

offender specification. The State contends, in the alternative, that this

1
 State v. Williams held that “imposing separate sentences for allied offenses of similar import is contrary to
law and such sentences are void. Therefore, res judicata does not preclude a court from correcting those
sentences after a direct appeal.” Williams at ¶ 2. However, upon further reading of the opinion, the Court
limits this holding to situations where “a trial court concludes that the accused has in fact been found guilty
of allied offenses of similar import” but then goes on to impose sentences for both offenses. Williams at
¶ 29. The Court contrasts this situation from a scenario where “neither the parties nor the trial court had
raised the issue whether the convictions were for allied offenses of similar import” or where “the court had
not found that the convictions should merge for purposes of sentencing.” Id. The Court reasoned that in the
latter scenarios, “the imposition of separate sentences therefore was not contrary to law.” Id. The Court
also noted its prior statement in Holdcroft, supra, at ¶ 8 “that our void sentence jurisprudence does not
apply to ‘challenges to a sentencing court’s determination whether offenses are allied.’ (Emphasis added).”
Williams at ¶ 24.
2
  We note that Appellant, under this assignment of error, requested that this Court certify a conflict with
regard to the question “whether conviction for trafficking in different types of drugs are allied offenses of
similar import.” However, the proper method of seeking certification of a conflict is to file a separate
motion to certify a conflict under App.R. 25.
Scioto App. No. 16CA3759                                                      10

argument is also barred by the doctrine of res judicata. We agree with each

and every argument advanced by the State under this assignment of error.

      {¶15} We initially conclude that, for essentially the same reason the

second assignment of error is barred by res judicata, this argument is also

barred by res judicata. The lack of any specific findings as to the mandatory

drug offender portion of Appellant’s sentence was known to Appellant at the

time of his direct appeal. As such, he should have raised the argument at

that time. Because it was capable of being raised but was not raised, in

accordance with the law and reasoning set forth above, the argument is now

barred by the doctrine of res judicata.

      {¶16} Further, Appellant has presented us with no authority stating

that a trial court’s failure to make specific findings prior to imposing

sentence on a major drug offender, let alone in the context of an agreed plea

and sentence, renders a sentence void, thereby removing it from the

application of the principles of res judicata. In the recent Supreme Court of

Ohio case of State v. Williams, supra, the Court discussed the evolution of

its “void sentence jurisprudence,” and noted its prior determinations that

failure to impose a statutorily mandated term of post-release control, failure

to include a mandatory driver’s license suspension in the offender’s

sentence, and failure to include a mandatory fine in the sentence all result in
Scioto App. No. 16CA3759                                                      11

the sentence being void. State v. Williams at ¶ 21; citing State v. Singleton,

124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 18, 23, 36; State v.

Harris, 132 Ohio St.3d 318, 2012-Ohio-1908, 972 N.E.2d 509, paragraph

one of the syllabus; State v. Moore, 135 Ohio St.3d 151, 2010-Ohio-5479,

985 N.E.2d 432, syllabus. As noted above, the Supreme Court in Williams

further extended its “void sentence jurisprudence” to scenarios where a trial

court determines prior to sentencing that offenses constitute allied offenses

of similar import, but then fails to merge them for purposes of sentencing

and imposes sentences on all counts. Williams at ¶ 29. However, Appellant

has presented us with no authority and we are aware of no authority which

states a trial court’s failure to make findings prior to imposing sentence on a

major drug offender specification results in a void sentence. As such, we

conclude that the traditional principles of res judicata apply to bar

Appellant’s argument.

      {¶17} Finally, in an abundance of caution, we note that even if res

judicata does not apply, at least one court has found that a plea of guilty to a

major drug offender specification constituted consent to having the issue

determined by a court and not a jury and thus waived any potential objection

to judicial fact-finding on the issue. State v. Newton, 2nd Dist. Montgomery

No. 24154, 2011-Ohio-2186, ¶ 23 (and further reasoning that “[a] plea of
Scioto App. No. 16CA3759                                                       12

guilty is a complete admission of factual guilt and, accordingly, the

defendant’s factual guilt is removed from further consideration.) (internal

citations omitted). We find this principle to apply, even more so, in the

context, where here, Appellant pleaded guilty to the major drug offender

specification as part of an agreed plea and sentence. We reached the same

result in State v. Chapple, a case involving Appellant’s co-defendant, in

which Chapple argued on direct appeal that the trial court did not make

required findings prior to imposing sentence on a major drug offender

specification. State v. Chapple, 4th Dist. Scioto No. 13CA3591, 2015-Ohio-

532, ¶ 19; citing State v. Rammel, 2nd Dist. Montgomery Nos. 25899 and

25900, 2014-Ohio-1281, ¶ 10.

      {¶18} As such, we find that this argument is barred by both the

doctrine of res judicata, as well as the fact that his sentence is not subject to

appellate review as it was imposed pursuant to an agreed plea and sentence.

Thus, Appellant’s third assignment of error is overruled. Accordingly,

having found no merit in any of the assignments of error raised by

Appellant, the trial court’s decision denying Appellant’s motion for

resentencing is affirmed.

                                                  JUDGMENT AFFIRMED.
Scioto App. No. 16CA3759                                                       13

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Scioto County Common Pleas Court to carry this judgment into
execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Harsha, J. & Abele, J.: Concur in Judgment and Opinion.

                                        For the Court,

                                 BY: ______________________________
                                     Matthew W. McFarland, Judge


                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
