[Cite as State v. Crum, 2017-Ohio-9000.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                  :       Hon. Craig R. Baldwin, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
SHANE CRUM                                  :       Case No. 2017CA00129
                                            :
        Defendant-Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. 1996CR1057




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   December 11, 2017




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     SHANE CRUM, Pro Se
Prosecuting Attorney                                Inmate No. 334-540
RONALD MARK CALDWELL                                Marion Correctional Institution
Assistant Prosecuting Attorney                      P.O. Box 57
110 Central Plaza South, Suite 510                  Marion, OH 43301
Canton, OH 44702-1413
Stark County, Case No. 2017CA00129                                                     2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Shane Crum, appeals the June 14, 2017 judgment

entry of the Court of Common Pleas of Stark County, Ohio, denying his motion filed

June 8, 2017. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On March 27, 1997, a jury convicted appellant of one count of rape in

violation of R.C. 2903.02, one count of felonious sexual penetration in violation of R.C.

2907.12, and one count of gross sexual imposition in violation of R.C. 2907.05. By

judgment entry filed March 31, 1997, the trial court sentenced appellant on each count,

to be served consecutively, culminating in an aggregate term of life in prison.

       {¶ 3} Appellant appealed his conviction and sentence which this court affirmed

on October 26, 1998. State v. Crum, 5th Dist. Stark No. 97-CA-0134, 1998 WL 818055

(Oct. 26, 1998), appeal not accepted, 85 Ohio St.3d 1406, 706 N.E.2d 788. One of the

assignments of error raised the issue of allied offenses and merger under R.C. 2941.25.

       {¶ 4} On February 19, 2004, appellant filed a petition to vacate or set aside

sentence pursuant to R.C. 2953.21, claiming newly discovered evidence in the form of

undisclosed witness statements. By judgment entry filed December 16, 2004, the trial

court denied the petition.

       {¶ 5} Appellant appealed the denial which this court affirmed on December 27,

2005. State v. Crum, 5th Dist. Stark No. 2005CA00024, 2005-Ohio-7037, appeal not

accepted, 109 Ohio St.3d 1457, 2006-Ohio-2226, 847 N.E.2d 6.

       {¶ 6} On June 8, 2017, appellant filed a motion to correct void sentence for the

court's failure to comport with the statutory requirements of R.C. 2941.25, claiming the
Stark County, Case No. 2017CA00129                                                3


trial court erred in failing to conduct a sentencing hearing on the merger issue. By

judgment entry filed June 14, 2017, the trial court denied the motion.

      {¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶ 8} "THE TRIAL COURT ERRED IN SIMPLY DENYING THIS APPELLANT'S

MOTION WITHOUT ANY REASONED DECISION OR FINDINGS OF FACT AND

CONCLUSIONS OF LAW VIOLATING HIS CONSTITUTIONAL RIGHTS TO THE DUE

PROCESS OF LAW AND A FAIR TRIAL UNDER THE 5TH AND 14TH AMENDMENTS

OF THE US CONSTITUTION AND THE EQUIVALENT ARTICLES AND SECTIONS

OF THE OHIO CONSTITUTION."

                                            II

      {¶ 9} "THE TRIAL COURT INITIALLY ERRED BY IMPOSING CONSECUTIVE

SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT AND AS SUCH THE

SENTENCE IMPOSED IN THIS CASE DOES NOT COMPORT WITH THE

STATUTORY REQUIREMENTS OF O.R.C. 2941.25 SINCE THE STATE RELIED ON

THE SAME CONDUCT WITH THE SAME ALLEGED VICTIM ALL IN THE SAME TIME

FRAME TO SUPPORT ALL THE CHARGES AGAINST THIS APPELLANT.                       ANY

SENTENCE IMPOSED THAT IS NOT STATUTORILY COMPLIANT IS VOID AND

MUST BE VACATED OR CORRECTED OR THIS APPELLANT'S CONSTITUTIONAL

RIGHT TO THE DUE PROCESS OF LAW AND A FAIR TRIAL UNDER THE 5TH AND

14TH AMENDMENTS AND THE EQUIVALENT ARTICLES AND SECTIONS OF THE

OHIO CONSTITUTION ARE VIOLATED."
Stark County, Case No. 2017CA00129                                                      4


                                            III

       {¶ 10} "THE TRIAL COURT ERRED IN NOT CONDUCTING A MERGER

HEARING AT SENTENCING OR WHEN THE ALLIED OFFENSE MOTION WAS

FILED AS THE FACIAL QUESTION OF MERGER IS PLAIN AND MUST BE

ADDRESSED TO ENSURE STATUTORY COMPLIANCE AND THE FAILURE TO DO

SO VIOLATED THIS APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 5TH

AND 14TH AMENDMENTS OF THE US CONSTITUTION AND THE EQUIVALENT

ARTICLES AND SECTIONS OF THE OHIO CONSTITUTION."

                                         I, II, III

       {¶ 11} In his three assignments of error, appellant claims the trial court erred in

denying his motion without any reasoned decision or findings of fact and conclusions of

law, challenges his consecutive sentences under R.C. 2941.25, and claims the trial

court erred in not conducting a merger hearing. We disagree.

       {¶ 12} In his 1998 direct appeal at Assignment of Error IV, appellant challenged

the following:



                 AS THE EVIDENCE AT TRIAL RELIED UPON THE SAME

       CONDUCT TO SUPPORT THE OFFENSES OF RAPE, GROSS SEXUAL

       IMPOSITION, AND FELONIOUS SEXUAL PENETRATION AND THE

       STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE

       SEPARATE AMICUS FOR EACH CHARGE, MR. CRUM SHOULD NOT

       BE CONVICTED AND SENTENCED FOR ALL SUCH OFFENSES

       PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS TO
Stark County, Case No. 2017CA00129                                                    5


      THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 10 OF

      THE OHIO STATE CONSTITUTION AND SECTION 2941.25 OF THE

      OHIO REVISED CODE.



      {¶ 13} In overruling the assignment, this court stated the following:



             Upon review of the trial record, we find the evidence presented at

      trial provides a basis for reasonable minds to conclude appellant engaged

      in multiple acts which could be separately classified as felonious sexual

      penetration, rape, and gross sexual imposition. These crimes are defined

      in the jury instructions given by the trial court set forth supra. The trial

      court instructed the jury to consider the charges and the evidence

      supporting each charge separately.         3Tr. at 69.   This court cannot

      substitute our judgment for that of the jury.



State v. Crum, 5th Dist. Stark No. 97-CA-0134, 1998 WL 818055, *10 (Oct. 26, 1998).



      {¶ 14} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 26, the

Supreme Court of Ohio stated the following:



             Our decisions in Mosely [v. Echols, 62 Ohio St.3d 75, 578 N.E.2d

      454 (1991)], Holdcroft [State v., 137 Ohio St.3d 526, 2013-Ohio-5014, 1

      N.E.3d 382], and Rogers [State v., 143 Ohio St.3d 385, 2015-Ohio-2459,
Stark County, Case No. 2017CA00129                                                      6


       38 N.E.3d 860] establish 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.      See

       Holdcroft at ¶ 8-9.



       {¶ 15} In the case sub judice, the trial court found the offenses were not allied

offenses and sentenced appellant to separate sentences. Appellant timely appealed

and assigned the issue as error. This court disagreed with appellant's arguments and

overruled the assignment. The Supreme Court of Ohio declined to accept the appeal

for review. State v. Crum, 85 Ohio St.3d 1406, 706 N.E.2d 788. As a result, appellant

is barred from relitigating the issue under the doctrine of res judicata. As stated by the

Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),

paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable to

petitions for postconviction relief. The Perry court explained the doctrine at 180-181 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 have been raised by the defendant
Stark County, Case No. 2017CA00129                                                      7


       at the trial which resulted in that judgment of conviction or on an appeal

       from that judgment.



       {¶ 16} Although appellant argued in his June 8, 2017 motion that the motion was

not a petition for postconviction relief, "[w]here a criminal defendant, subsequent to his

or her direct appeal, files a motion seeking vacation or correction of his or her sentence

on the basis that his or her constitutional rights have been violated, such a motion is a

petition for postconviction relief as defined in R.C. 2953.21." State v. Reynolds, 79 Ohio

St.3d 158, 679 N.E.2d 1131, syllabus.

       {¶ 17} In addition, appellant's filing did not meet the requirements of R.C.

2953.23(A)(1) as it was untimely under R.C. 2953.21(A)(2) and was a successive

petition.

       {¶ 18} Upon review, we find the trial court did not err in summarily denying

appellant's "motion."
Stark County, Case No. 2017CA00129                                           8


      {¶ 19} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.


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