[Cite as State v. Crum, 2014-Ohio-2361.]


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

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 13CA13
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
ROBERT P. CRUM,                :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 05/27/14
_____________________________________________________________
                         APPEARANCES:

Robert P. Crum, Chillicothe, Ohio, Pro Se Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and W.
Mack Anderson, Lawrence County Assistant Prosecuting Attorney, Ironton,
Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} This is an appeal from a Lawrence County Court of Common

Pleas decision denying Appellant’s “Motion for Re-sentencing” by judgment

entry dated July 10, 2013. Appellant was convicted at a jury trial on

November 29, 2005 of seventeen counts. The first count was burglary, a

violation of R.C. 2911.12(A)(2). The remaining counts were counts of
Lawrence App. No. 13CA13                                                                                  2


breaking and entering, in violation of R.C. 2911.13(A).1 Appellant was

sentenced on December 21, 2005.2

        {¶2} Appellant contends the trial court erred in denying his “Motion

for Re-Sentencing” in that: (1) it was an abuse of discretion to overrule the

motion without conducting an evidentiary hearing; and (2) plain error

occurred by the court’s failure to merge for sentencing allied offenses of

similar import. Upon review, we agree Appellant’s motion actually

constitutes a petition for post-conviction relief, pursuant to R.C. 2953.23,

and was untimely filed. Further, we find Appellant’s arguments raised in the

petition would be barred by the doctrine of res judicata. For these reasons,

the judgment of the Lawrence County Common Pleas Court is reversed.

The trial court’s judgment entry overruling Appellant’s motion for

resentencing is vacated. The petition for post-conviction relief should be

dismissed for lack of jurisdiction.

                FACTUAL AND PROCEDURAL BACKGROUND

        {¶3} We recount the facts as previously set forth in State v. Crum, 4th

Dist. Lawrence No. 07CA3, 2007-Ohio-4924. The offenses giving rise to


1
  Appellant was indicted on 19 counts. Prior to submission of the case to the jury, counts 10 and 18 were
dismissed.
2
  Appellant had filed an Interstate Agreement on Detainer requesting to be transported from the State of
Ohio to West Virginia to answer pending charges. It was agreed that a “hold” would be placed upon him
so that Lawrence County, Ohio law enforcement authorities would be notified upon his release from
incarceration in West Virginia. It was not until October 19, 2007 that Appellant was ordered transported to
the appropriate Ohio state penal institution to begin serving his sentence in this matter.
Lawrence App. No. 13CA13                                                                              3


the Appellant’s convictions occurred at various locations, mostly churches

during November and December 2004 in Lawrence County. Appellant was

convicted on November 29, 2005 and sentenced on December 21, 2005 for

one count of burglary, a second degree felony, and sixteen counts of a

nineteen-count indictment for breaking and entering, all fifth degree

felonies. His sentence on the seventeen counts totaled twelve years and one

month in an Ohio penal institute.

        {¶4} Following his convictions, the Appellant filed a motion for a

new trial, which the trial court denied. Shortly thereafter, Appellant

requested appellate counsel to be appointed so that he could file a notice of

appeal with this court. Four separate counsel were appointed to represent

him in his appeal. On November 27, 2006, Appellant filed a notice of

appeal with this court which was dismissed, as we had no authority to extend

the deadline for filing a notice of appeal. In response to this entry,

Appellant, through counsel, filed a notice of appeal and a motion for leave to

file a delayed appeal, which was granted.3

        {¶5} Appellant next filed an appeal, initially through counsel via an

Anders brief, and also filed a pro se brief in which he raised additional issues

3
 We have been unable to identify the exact date of the filing and grant of the delayed appeal. It would
appear sufficient to say the delayed appeal was filed and granted sometime after November 27, 2006,
(when Appellant filed his first notice of appeal which was dismissed as being untimely), and before
September 18, 2007, (the date of our decision in State v. Crum, 4th Dist. Lawrence No. 07CA3, 2007-Ohio-
4924).
Lawrence App. No. 13CA13                                                                                     4


for review. Appellant asserted, through counsel, three issues: (1) that the

trial court failed to conduct judicial fact-finding before imposing a more-

than-minimum concurrent sentence under State v. Foster, 109 Ohio St. 3d 1,

2006-Ohio-856, 845 N.E.2d 470;4 (2) that he was provided ineffective

assistance of counsel; and (3); that the trial court erred when it failed to

dismiss count one of the Appellant’s indictment for burglary as the State had

failed to show all the essential elements of the crime. In the pro se brief,

Appellant raised four additional assignments of error: (1) that Foster should

apply to his case and his initial appellate counsel’s failure to file a notice of

intent to appeal forced his case to be prematurely final; (2) that the trial court

erred when it failed to dismiss count seventeen of his indictment as the State

had failed to show all the essential elements of the crime of breaking and

entering; (3) that the trial court denied his due process and fair trial rights

when it failed to provide him enough time to obtain a fingerprint expert; and

4
  In Foster, the Supreme Court of Ohio declared that portions of Ohio’s felony sentencing statutes were
unconstitutional and excised them. Former R.C. 2953.08(G), which provided the standard of review for
felony sentencing, referred to some of the statutory provisions that Foster had deemed unconstitutional. As
a result, the Supreme Court in State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, 896 N.E.2d124, held
that the standard of review in R.C. 2953.08(G)(2) was no longer applicable “because it expressly related to
‘findings’ that had been abrogated as unconstitutional.” State v Rodeffer, 2nd Dist. Montgomery Nos.
25574,25575,25576, 2013-Ohio-5759, ¶26, quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 ¶8,
(8th Dist.). The United States Supreme Court held that it is constitutionally permissible for States to require
judges to make findings of fact before imposing consecutive sentences. Oregon v. Ice, 444 U.S. 160, 164,
129 S. Ct. 711 (2009). The Supreme Court of Ohio subsequently held that its decision in Foster remained
valid after Ice, and that the judiciary was not required to make findings of fact prior to imposing maximum
or consecutive sentences “unless the General Assembly enacts new legislation requiring that findings be
made.” Rodeffer, at ¶27, quoting State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768,
paragraph three of the syllabus. Thereafter, the Ohio General Assembly enacted 2011 Am.Sub. H.B. No.
86 (“H.B.86”), which removed the unconstitutional statutory provisions cited in R.C. 2953.08(G) and
revived the judicial fact-finding requirement for consecutive sentences. Rodeffer, at ¶27.
Lawrence App. No. 13CA13                                                                                 5


(4) that he was denied due process by being arraigned without counsel.

After independently reviewing the record, we agreed with counsel’s

conclusion that a meritorious claim did not exist upon which to base an

appeal. In the above-referenced decision dated September 18, 2007, we

found the appeal wholly frivolous and affirmed the judgment of the trial

court.

         {¶6} Appellant filed a “Motion for Re-sentencing” on January 9,

2013. By judgment entry dated January 24, 2013, the trial court denied

Appellant’s motion.5 Appellant filed a notice of appeal of the January 24,

2013 entry. This court dismissed Appellant’s appeal by entry dated May 3,

2013 for the reason that the entry appealed from was not a final appealable

order. On June 4, 2013, Appellant filed a “Motion Requesting Final

Appealable Order.” On June 10, 2013, the trial court denied Appellant’s

motion.

         {¶7} Appellant next filed a “Motion for Re-Sentencing” on June 25,

2013. On July 10, 2013, the trial court filed a judgment entry, finding that

the motion for re-sentencing was, in fact, a petition for post-conviction relief

and was required to be filed no later than one hundred eighty (180) days



5
 In the judgment entry, the trial court noted Appellant had twice approached the 4th District Court of
Appeals. Appellate case number 06CA40 was dismissed on January 19, 2007. Appellate case number
07CA03 was dismissed on October 30, 2008.
Lawrence App. No. 13CA13                                                      6


after Appellant’s conviction. The trial court further found that it lacked

jurisdiction to modify its own judgment.

      {¶8} This appeal followed.

                        ASSIGNMENTS OF ERROR

I.    “THE TRIAL COURT ABUSED ITS DISCRETION FOR FAILING
      TO HOLD AN EVIDENTIARY HEARING PRIOR TO
      OVERRULING APPELLANTS [SIC] MOTON FOR RE-
      SENTENCING.”

II.   “THE TRIAL COURT COMMITTED PLAIN ERROR AND
      VIOLATED APPELANT’S [SIC]RIGHTS AGAINST DOUBLE
      JEOPARDY WHEN IT FAILED TO RECOGNIZE THE OFFENSES
      FOR WHICH HE WAS INDICTED AND SENTENCED
      CONSTITUTED ALLIED OFFENSES OF SIMILAR IMPORT.”

                         STANDARD OF REVIEW

      {¶9} We agree that Appellant’s “Motion for Re-sentencing”

constituted a motion for post-conviction relief. R.C. 2953.21 et seq.,

governing the proceedings upon a post-conviction petition, provides “the

exclusive remedy by which a person may bring a collateral challenge to the

validity of a conviction or sentence in a criminal case.” R.C. 2953.21(J);

State v. Ringer, 1st Dist. Hamilton No. C-120606, 2013-Ohio-2442, ¶5.

Appellant’s “Motion for Re-sentencing” is reviewable as a post-conviction

petition under the standards provided by the post-conviction statutes. Id.;

See State v. Schlee, 117 Ohio St. 3d 153, 2008-Ohio-545, 882 N.E,.2d 431,

¶12. Generally, a ruling on a post-conviction relief motion should not be
Lawrence App. No. 13CA13                                                         7


reversed absent an abuse of a trial court’s discretion. State v. Williams, 4th

Dist. Lawrence No. 12CA22, 2013-Ohio-2989, ¶16. See, State v. Fisk, 4th

Dist. Washington No. CA4, 2011-Ohio-6116, at ¶ 6; State v. Hicks, 4th Dist.

Highland No. 09CA15, 2010-Ohio-89, at ¶ 11. An abuse of discretion is

more than an error of law or judgment; rather, it implies that a court’s

attitude is unreasonable, arbitrary, or unconscionable. Williams, supra. See

State v. Clark, 71 Ohio St. 3d 466, 470, 1994-Ohio-43, 644 N.E.2d 331;

State v. Moreland, 50 Ohio St. 3d 58, 61, 552 N.E.2d 894 (1990).

                             LEGAL ANALYSIS

      {¶10} Because they are interrelated, we consider Appellant’s

assignments of error jointly. In his first assignment of error, Appellant

contends the trial court erred by failing to hold an evidentiary hearing prior

to overruling the motion for re-sentencing. In his second assignment of error,

Appellant contends the trial court committed plain error and violated his

rights against Double Jeopardy when it failed to recognize the offenses for

which Appellant was sentenced constituted allied offenses of similar import.

      {¶11} As noted above, the trial court noted that the motion to vacate

was, in fact, a petition for post-conviction release [sic] and was required to

be filed no later than one hundred eighty (180) days after Appellant’s

conviction in 2005. The trial court denied Appellant’s motion as being
Lawrence App. No. 13CA13                                                                              8


untimely filed. R.C. 2953.21(A)(2) provides: “If no appeal is taken, except

as otherwise provided in section 2953.23 of the Revised Code, the petition

shall be filed no later than one hundred eighty days after the time for filing

the appeal.” The filing and grant of Appellant’s delayed appeal did not

extend the time for filing the petition for post-conviction relief. State v.

Owens, 10th Dist. Mahoning No. 09 MA 116, 2010-Ohio-1003, ¶13. Other

jurisdictions have consistently held that an allowance of a delayed appeal

does not extend the time for filing a petition for post-conviction relief.6

        {¶12} This case and our decision herein is somewhat similar to that

recently reached by the first district appellate court in State v. Ringer, 1st

Dist. Hamilton No. C-120606, 2013-Ohio-2442. Ringer was convicted in

2002 upon guilty pleas to two counts of voluntary manslaughter. In January

2012, Ringer filed a “Motion for Merger Hearing Pursuant to RC. 2941.25.”

In his motion, he argued the trial court could not, consistent with R.C.

2941.25, sentence him on both counts of the voluntary manslaughter because

they are allied offenses of similar import committed with the same conduct.

In his appeal of the overruling of that motion, Ringer argued the trial court

erred by failing to conduct an evidentiary hearing on his allied offenses

6
 See, also, State v. Johnson, 144 Ohio App. 3d 222, 225-266, 759 N.E.2d 889 (7th Dist. 2001); State v.
Macias, 6th Dist. Lucas No. L-01-1391, 2003-Ohio-684, ¶8; State v. Bird, 138 Ohio App. 3d 400, 403-404,
741 N.E.2d 560 (10th Dist.2000); State v. Fields, 136 Ohio App. 3d 393, 396-397, 736 N.E.2d 933 (8th
Dist. 1999); State v. Johnson, 5th Dist. Muskingum No. CT-98-0029, 1999 WL 254456, (Apr. 21, 1999),
*2.
Lawrence App. No. 13CA13                                                          9


claim. When filing a petition for post-conviction relief, the petitioner may

request an evidentiary hearing. R.C. 2953.21(A). However, a hearing is not

automatically required for every post-conviction relief petition that is filed.

State v. Simons, 2nd Dist. Champaign No. 2013 CA5, 2013 WL 4537089, ¶

12, citing State v. Jackson, 64 Ohio St. 2d 107,110, 4123 N.E.2d 819 (1980).

See, also, State v. Messineo, 4th Dist. Athens No. 96CA1771, 1997 WL

323885, *2 (June 11, 1997). The first district court disagreed with Ringer’s

contention. Noting Ringer had filed his motion well after the expiration of

the time prescribed by R.C. 2953. 21(A)(2), the appellate court pointed out,

as follows, that R.C. 2953.23 set forth the jurisdiction of the common pleas

court to entertain a late post-conviction petition:

      “The petitioner must show either that he was unavoidably
      prevented from discovery of the facts upon which his petition
      depends, or that this claim is predicated upon a new or
      retrospectively applicable federal or state right recognized by
      the United States Supreme Court since the expiration of the
      time prescribed by R.C. 2953.219A)(2) or since the filing of his
      last petition; and he must show ‘by clear and convincing
      evidence that, but for constitutional error at trial, no reasonable
      factfinder would have found [him[]guilty of the offense of
      which [he]was convicted.” Ringer, at ¶ 6.

      {¶13} The first district court held that because Ringer did not

satisfy either the time restrictions of R.C. 2953.21(A)(2) or the jurisdictional

requirements of R.C. 2953.23, the post-conviction statutes neither conferred

upon the common pleas court jurisdiction to entertain Ringer’s post-
Lawrence App. No. 13CA13                                                          10


conviction motion, nor imposed upon the court an obligation to conduct an

evidentiary hearing on the motion. Id. at 7.

      {¶14} We made similar findings in State v. Williams, 4th Dist.

Lawrence No. 11CA25, 2012-Ohio-3401. There Williams pled guilty to five

counts of drug-related charges and was ordered to serve a total of eight years

in prison. Williams did not appeal from the 2010 judgment entry of

conviction. In August, 2011, Williams filed a petition to vacate and set

aside the sentence pursuant to R.C. 2953.23, and raised various arguments

including failure to merge allied offenses of similar import. The trial court

scheduled a resentencing hearing and filed a new judgment entry of

conviction on November 10, 2011. Williams still received a total of eight

years in prison. Williams’s appellate counsel filed an Anders brief raising

the question of failure to merge the allied offenses. Upon review, we held

that the trial court did not have jurisdiction to entertain Williams’s petition

for post-conviction relief or modify the 2010 judgment entry of conviction.

We held:

      “[A]court has no jurisdiction to entertain an untimely petition
      for postconviction relief unless the petitioner makes the
      showings required by R .C. 2953.23(A).” State v. Hall, 4th
      Dist. Hocking No. 06CA17, 2007-Ohio-947, ¶10; (Internal
      citations omitted.)…. “Because Williams’s petition was
      untimely, he had to meet the requirements of either R.C.
      2953.23(A)(1) or 2953.23(A)(2).” ¶11-12. “Here Williams did
      not even attempt to satisfy either R.C. 2953.23(A)(1) or
Lawrence App. No. 13CA13                                                        11


      2953.23(A)(2). Rather, he filed a standard petition that
      completely ignores the requirements of R.C. 2953.23.
      Williams’s petition essentially claims (1) that his guilty pleas
      were not knowing, intelligent, and voluntary; (2) that Williams
      received ineffective assistance of counsel; and (3) that the trial
      court should have merged Williams’s various offenses. These
      claims do not satisfy either R.C. 2953.23(A)(1) or
      2953.23(A)(2). Therefore, the trial court did not have
      jurisdiction to entertain Williams’s petition for postconviction
      relief, and the trial court did not have the authority to resentence
      Williams under the postconviction-relief statute. See Hall at
      ¶16.”

      {¶15} Thus, the trial court in Williams was also not required to

conduct an evidentiary hearing, although it chose to do so. With Appellant’s

appeal of the trial court’s “Motion for Resentencing” we are faced with a

similar scenario. Here, also, Appellant filed a motion requesting collateral

relief which would fall under the post-conviction statutes. However,

Appellant did not file his post-conviction petition within the 180-day time

limit as prescribed by R.C. 2953.21(A)(2). Because Appellant did not satisfy

the time requirements or the jurisdictional requirements of R.C. 2953.23, the

trial court was not obligated to conduct an evidentiary hearing on

Appellant’s motion. As such, we do not find the trial court abused its

discretion by failing to conduct an evidentiary hearing on Appellant’s

untimely filed motion.

      {¶16} Furthermore, the doctrine of res judicata bars claims that the

defendant raised or could have raised on direct appeal. State v. Literal, 4th
Lawrence App. No. 13CA13                                                     12


Dist. Scioto No. 12CA3479, 2012-Ohio-6298, ¶6; In re B.C.S., 4th Dist. No.

07CA60, 2008-Ohio-5771, ¶ 14. “[T]he doctrine serves to preclude a

defendant who has had his day in court from seeking a second on that same

issue. In doing so, res judicata promotes the principles of finality and

judicial economy by preventing endless re-litigation of an issue on which a

defendant has already received a full and fair opportunity to be heard.”

Literal, supra, quoting State v. Saxon, 109 Ohio St. 3d 176, 2006-Ohio-

1245, 846 N.E.2d 824, ¶18. In State v. Miller, 4th Dist. Lawrence No.

11CA14, 2012-Ohio-1922, ¶1, we held because Miller could have but failed

to raise an allied offenses argument in a direct appeal, his argument was

barred by the doctrine of res judicata.

      {¶17} Although Appellant was granted a delayed appeal, that did not

extend the time limit for filing his post-conviction petition. Appellant’s

petition for post-conviction relief is time-barred. Further, we decline to

reach the merits of Appellant’s second assignment of error, that the trial

court committed plain error for failing to merge his convictions as allied

offenses of similar import, when this argument could have been raised in

Appellant’s Anders appeal and is barred, therefore, by the doctrine of res

judicata. For these reasons, the judgment of the Lawrence County Common

Pleas Court is reversed. The trial court’s judgment entry overruling
Lawrence App. No. 13CA13                                                 13


Appellant’s motion for resentencing is vacated. The petition for post-

conviction relief should be dismissed for lack of jurisdiction.

                             JUDGMENT REVERSED AND VACATED.
Lawrence App. No. 13CA13                                                         14


                            JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE REVERSED AND VACATED
and Appellant recover costs from Appellee.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Lawrence 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. & Hoover, 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.
