[Cite as State v. Occhipinti, 2016-Ohio-1286.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                         C.A. No.     15CA010787

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CARMEN OCCHIPINTI                                     COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   12CR085912

                                  DECISION AND JOURNAL ENTRY

Dated: March 28, 2016



        HENSAL, Presiding Judge.

        {¶1}     Defendant-Appellant, Carmen Occhipinti, appeals from a judgment of the Lorain

County Court of Common Pleas, denying his pro se motion to find his conviction and sentence

for theft void. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     Mr. Occhipinti was indicted on one count of theft in violation of Revised Code

Section 2913.02(A)(3). After initially entering a plea of not guilty, he pleaded guilty and the

case proceeded to sentencing. On August 7, 2013, the trial court sentenced Mr. Occhipinti to

three years of community control, and ordered him to pay the costs of prosecution, court-

appointed-counsel costs, and supervision fees, totaling $720.00. Mr. Occhipinti did not file a

direct appeal of his sentence.

        {¶3}     Almost two years after sentencing, Mr. Occhipinti filed a pro se “Motion to Find

the Judgment Entry Void * * *.” In his motion, Mr. Occhipinti argued that the trial court failed
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to comply with Sections 2929.18(A)(1) and 2941.51(D) by not determining his ability to pay

prior to imposing court-appointed-counsel costs. Mr. Occhipinti also argued that the trial court

failed to comply with Section 2947.23(A)(1) because it did not notify him of its ability to order

community service for failure to pay court costs. He, therefore, argued that his sentence was

void and requested that the trial court “void the court cost[s] and court appointed counsel

fee[]s[.]” Lastly, Mr. Occhipinti argued that the trial court retained jurisdiction to correct his

sentence because res judicata does not apply to void sentences. The trial court denied his motion

and Mr. Occhipinti timely appealed, raising one assignment of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT FAILED TO COMPLY WITH THE STATUTOR[Y]
       REQUIREMENTS OF THE OHIO REVISE[D] CODE RENDERING THE
       JUDGMENT ENTRY AND SENTENCE VOID AND A NON-FINAL
       APPEALABLE ORDER.

       {¶4}    Mr. Occhipinti’s arguments on appeal mirror those set forth in his “Motion to

Find the Judgment Entry Void * * *” and we, therefore, will not recite them here. This Court

need not address the merits of Mr. Occhipinti’s assignment of error, however, because his

arguments are barred by res judicata. “It is well established under Ohio law that challenges to

sentencing errors, including the imposition of court costs, must be made on direct appeal.” State

v. Fields, 9th Dist. Wayne No. 02CA0004, 2002-Ohio-5549, ¶ 6; State v. Thompson, 2d Dist.

Montgomery No. 26364, 2015-Ohio-1984, ¶ 8-9. As previously noted, Mr. Occhipinti did not

file a direct appeal of his sentence. Instead, he filed a post-conviction motion to vacate his

sentence with the trial court almost two years after sentencing.

       {¶5}    To the extent that Mr. Occhipinti argues that res judicata does not apply because

his sentence is void, we find his argument unpersuasive. As this Court has stated, “the Ohio
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Supreme Court has applied its void-sentence analysis in limited circumstances[] [and] [t]his

Court will not extend its reach without clear direction from the Supreme Court.” State v.

Culgan, 9th Dist. Medina No. 09CA0060-M, 2010-Ohio-2992, ¶ 20. Mr. Occhipinti has pointed

us to no authority holding that a sentencing error regarding the imposition of court costs renders

a sentence void and, therefore, exempt from the preclusive effect of res judicata. See App.R.

16(A)(7). Consistent with our precedent, we will not reach that result in this case. Id.

       {¶6}    “[B]ecause [Mr. Occhipinti] could have raised his arguments pertaining to his

sentence and court costs in a direct appeal, he is now barred from asserting these arguments

under the doctrine of res judicata.” State v. Williams, 9th Dist. Summit No. 27482, 2015-Ohio-

2632, ¶ 7. Accordingly, Mr. Occhipinti’s assignment of error is overruled.

                                                III.

       {¶7}    Mr. Occhipinti’s assignment of error is overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



SCHAFER, J.
CANNON, J.
CONCUR.

(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)


APPEARANCES:

CARMEN OCCHIPINTI, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
