[Cite as State v. Pierce, 2017-Ohio-9058.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27543
                                                   :
 v.                                                :   Trial Court Case No. 2004-CR-2747/1
                                                   :
 JAMES E. PIERCE                                   :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 15th day of December, 2017.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JAMES E. PIERCE, Inmate No. 516-827, London Correctional Institution, P.O. Box 69,
London, Ohio 43140
     Defendant-Appellant-Pro Se

                                             .............




TUCKER, J.
                                                                                        -2-




        {¶ 1} Defendant-appellant, James Pierce, appeals pro se from the trial court’s

decision of September 19, 2016, in which the court: (1) overruled his motion for

resentencing pursuant to Crim.R. 52(B); (2) overruled his motion for a modification of the

order directing him to pay costs; and (3) overruled his motion for resentencing pursuant

to R.C. 2967.28. Finding that Pierce’s assignments of error lack merit, we affirm.

                             I. Facts and Procedural History

        {¶ 2} On November 17, 2004, a Montgomery County grand jury issued an

indictment charging Pierce with one count of abduction; one count of aggravated burglary;

one count of aggravated murder; two counts of aggravated robbery; two counts of

felonious assault with a deadly weapon; one count of having a weapon while under

disability; and two counts of kidnapping.      All of the charges, other than those for

abduction and having a weapon while under disability, included firearm specifications.

At the State’s request, the court entered a nolle prosequi of Count One of the indictment,

which was the charge for abduction.

        {¶ 3} After a jury trial, held between January 30 and February 6, 2006, Pierce was

found guilty as charged on all remaining counts.1 The court sentenced him to serve an

aggregate term of imprisonment of 51 years to life, and ordered that he serve mandatory

periods of postrelease control.

        {¶ 4} On February 22, 2006, Pierce moved for a new trial. The court denied

Pierce’s motion in a decision entered on April 5, 2006, and six days later, Pierce appealed

the decision to this court. Raising two assignments of error, Pierce contended that the


1   The charge of having a weapon while under disability was tried to the bench.
                                                                                          -3-


trial court improperly disregarded newly discovered evidence when it overruled his

motion, and in the alternative, that his convictions were against the manifest weight of the

evidence. State v. Pierce, 2d Dist. Montgomery No. 21561, 2007-Ohio-1749, ¶ 1, 6 and

14. We affirmed the trial court. See id. at ¶ 17.

       {¶ 5} Presumably in response to the Ohio Supreme Court’s decision in State v.

Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, the trial court filed an

amended, nunc pro tunc termination entry on March 26, 2010. The amended termination

entry, unlike the original, specified the manner of Pierce’s convictions. Pierce appealed

from the amended entry in Case No. CA 24278, but we dismissed the case for want of a

final appealable order.

       {¶ 6} On February 14, 2011, Pierce filed a motion with the trial court seeking

production of a transcript of the testimony presented to the grand jury that had indicted

him in November, 2004. The trial court overruled his motion, prompting Pierce to launch

a third appeal. We dismissed the case on jurisdictional grounds. State v. Pierce, 2d

Dist. Montgomery No. 25199, 2013-Ohio-1372, ¶ 5-6 and 17-18.

       {¶ 7} On June 11, 2013, Pierce filed a notice of appeal (Case No. CA 25793) from

the trial court’s original termination entry of February 28, 2006, simultaneously requesting

leave for a delayed appeal under App.R. 5(A). We overruled Pierce’s motion for leave

and dismissed the case.

       {¶ 8} Pierce’s instant appeal relates to three motions decided by the trial court: his

motion for resentencing pursuant to Civ.R. 52(B) of March 27, 2015; his motion for a

modification of the order directing him to pay costs of January 28, 2016; and his motion

for resentencing pursuant to R.C. 2967.28. The court overruled these motions in its
                                                                                               -4-


decision of September 19, 2016.         Under App.R. 5(A), we allowed Pierce a delayed

appeal from the court’s decision and accepted the notice of appeal he had filed on April

17, 2017.

                                          II. Analysis

         {¶ 9} For his first assignment of error, Pierce argues that:

                THE TRIAL COURT FAILED TO PROPERLY IMPOSE POST

         RELEASE CONTROL PURSUANT TO R.C. 2967.28 BY FAILING TO

         IMPOSE ANY MANDATORY POST RELEASE CONTROL IN THE ABOVE

         CASE, THE TRIAL COURT’S IMPOSITION DOES NOT INCLUDE ANY

         MANDATORY POST RELEASE CONTROL.2

         {¶ 10} Pierce claims that the trial court did not comply with the requirements of

R.C. 2967.28 when it sentenced him inasmuch as it omitted “a [m]andatory term of post

release [sic] control in its [termination] entry” of February 28, 2006, and again in its nunc

pro tunc termination entry of March 26, 2010. Appellant’s Br. 1-3. Specifically, Pierce

refers to the court’s imposition of postrelease control with respect to his convictions for

first degree felonies. Id. at 2-3.

         {¶ 11} R.C. 2967.28(B) states, in relevant part, that “[e]ach sentence to a prison

term for a felony of the first degree, * * * shall include a requirement that the offender be

subject to a period of postrelease control imposed by the parole board after the offender’s

release from imprisonment.”          Under R.C. 2967.28(B)(1), the mandatory term of

postrelease control for “a felony of the first degree [is] five years.”

         {¶ 12} Here, the trial court’s original termination entry indicates that “following


2   Pierce’s assignments of error are set forth in this opinion as they appear in his brief.
                                                                                            -5-


[Pierce]’s release from prison, [he] will serve a period of five (5) years post-release control

under the supervision of the parole board on Counts 2, 5, 6, 7 and 8” of the indictment—

the first degree felonies with which he was charged—and the court’s nunc pro tunc

termination entry includes exactly the same language. (Emphasis added.) The trial

court thus satisfied the requirements of R.C. 2967.28. See State v. Dominguez, 2d Dist.

Montgomery No. 27095, 2017-Ohio-476, ¶ 16-17. Pierce’s first assignment of error is

overruled.

       {¶ 13} For his second assignment of error, Pierce argues that:

              THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

       APPELLANT’S        MOTION      FOR    RE-SENTENCING          PURSUANT        TO

       CRIM.R. 52(B) SENTENCE CONTRARY TO LAW AS TO CONCURRENT

       SENTENCES.3

       {¶ 14} Pierce claims that the trial court should have granted his motion for

resentencing because he was convicted of “several * * * allied offenses of similar import”

that were not merged, which he characterizes as “plain error.” (Emphasis omitted.)

Appellant’s Br. 5. He contends that the court’s failure to merge the offenses renders his

sentences void. Id. at 6.

       {¶ 15} According to the Ohio Supreme Court, a sentencing court has a mandatory,

rather than discretionary, duty to merge allied offenses. State v. Williams, 148 Ohio

St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 27-28. An appellate court nevertheless “

‘ “will not consider any error * * * not call[ed] to the trial court’s attention at a time when


3 See supra note 2. Crim.R. 52(B) states that “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court.”
                                                                                               -6-


such error could have been avoided or corrected by the trial court.” ’ ” (Citation omitted.)

See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15,

quoting State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v.

Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. In

other words, a party who “fail[s] to seek the merger of his convictions as allied offenses

of similar import” at the trial level “forfeit[s] his allied offenses claim for appellate review.”

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21, citing

Quarterman, 2014-Ohio-4034, ¶ 15; see also Williams, 2016-Ohio-7658, ¶ 29; State v.

Hilliard, 8th Dist. Cuyahoga No. 102214, 2016-Ohio-2828, ¶ 11.

       {¶ 16} Here, the record available to us in the present posture of this case includes

no evidence that Pierce raised the issue of merger in advance of his trial, during his

sentencing hearing, or at any point before he filed his motion for resentencing on March

27, 2015.4 As a result, Pierce has forfeited the issue of merger on appeal. Even if he

had not forfeited the issue, however, he would be barred from raising it by the doctrine of

res judicata.

       {¶ 17} Under the doctrine of res judicata, “any issue that could have been raised

on direct appeal,” and yet was not, “is not subject to review in subsequent proceedings.”

State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16.

Notwithstanding our “agree[ment] [with the principle] that a void sentence can be


4 The only reference to the merger of offenses appears in the termination entries (the
original entry and the nunc pro tunc entry), where the court indicated that the firearm
specifications attached to “Counts 2, 3, 4, 5, 6, 7, 8, and 10 [would be] merged * * *.”
Given that the court imposed a separate firearm specification for Count 9—the charge of
aggravated murder—and ordered that it be served consecutive to the merged
specifications, the court’s treatment of the specifications appears to be in compliance with
R.C. 2929.14(B)(1)(g).
                                                                                              -7-


challenged at any time [irrespective of] res judicata,” a sentence will not be deemed void

when “ ‘a trial court finds that convictions are not allied offenses of similar import,’ ” or

when a court “ ‘fails to make any finding [at all] regarding whether the offenses are allied,

[and] impos[es] a separate sentence for each offense that is not [otherwise] contrary to

law.’ ”     State v. Woullard, 2d Dist. Montgomery No. 27216, 2017-Ohio-2614, ¶ 14,

quoting State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 26. In

the latter scenario, applicable to the case at hand, any error regarding a purported failure

to merge offenses “ ‘must be asserted in a timely appeal or it will be barred by * * * res

judicata.’ ” Id., quoting Williams, 2016-Ohio-7658, ¶ 26; see also State v. Dominguez,

2d Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶ 10.

          {¶ 18} Pierce did not file a direct appeal, and the record before us includes no

indication either that Pierce timely raised the issue in the trial court, or that the trial court

made any finding with respect to the merger of his convictions.5 Consequently, we hold

that Pierce is barred from raising the issue of merger under the doctrine of res judicata.

Pierce’s second assignment of error is overruled.

          {¶ 19} For his third assignment of error, Pierce argues that:

                 TRIAL     COURT      ERRED       WHEN        DENIED       APPELLANT

          OPPORTUNITY MOTION FOR MODIFICATION OF COURT ORDER

          PAYMENTS FROM INMATES ACCOUNT.6


5 For the reasons stated by the trial court in its decision, Pierce’s arguments in favor of
the merger of some or all of his offenses would seem unlikely to have been availing in
any event. Decision, Order & Entry Overruling Def.’s Mots. for Resentencing and
Overruling Def.’s Mot. for Court Order to Modify Payments from Inmate’s Account 2-3,
Sept. 19, 2016.
6   See supra note 2.
                                                                                            -8-


       {¶ 20} Finally, Pierce faults the trial court for overruling his motion for modification

as the result of its “fail[ure] to understand” the relief he sought. Appellant’s Br. 8. In his

brief, Pierce “asserts [that] he only wanted to allow his family to make payments to the

court by removing the hold[] on his [inmate] [ac]count, [and that he did] not [request a]

reduc[tion] [of] the amount owed to the court[] by any means.” Id. The motion, as Pierce

submitted it to the trial court, set forth a request for permission “to begin to make payments

to the Clerk of [C]ourts [in the amount] of [$]20.00 [per] month.” Def.’s Mot. for Court

Order Modifying Monthly Amount of Cost Payments 1, Jan. 28, 2016. He explained in

the motion that he required the court’s permission because of a then-recent modification

to Ohio Adm.Code 5120-5-03. Id.

       {¶ 21} Under the current version of Ohio Adm.Code 5120-5-03(E), if “withdrawals

[from an inmate’s account] are authorized [for payment of court costs,] and if there are

insufficient funds in the inmate’s account to satisfy [an] amount shown [to be owed by the

inmate], a monthly check shall be issued [from the account] payable to the appropriate

clerk’s office * * *, for the amount of monthly income received into the inmate’s account

[that] exceeds twenty-five dollars until the full amount of the court obligation has been

paid.” The previous version directed that monthly payments be made from monthly

income in excess of ten dollars.

       {¶ 22} Though Pierce did not seek to be relieved entirely of the obligation to pay

court costs, as he insists in his brief, we lack the authority to rewrite the law.

Administrative rules that are promulgated “pursuant to statutory authority [have] the force

of law unless [they are] unreasonable or conflict[] with * * * statute[s] covering the same

subject matter.” State ex rel. Celebrezze v. Nat’l Lime & Stone Co., 68 Ohio St.3d 377,
                                                                                         -9-

382, 627 N.E.2d 538 (1994), citing Youngstown Sheet & Tube Co. v. Lindley, 38 Ohio

St.3d 232, 234, 527 N.E.2d 828 (1988). Ohio Adm.Code 5120-5-03 has been issued

under the authority of R.C. 111.15 and 5120.01, and Pierce offers no argument that the

regulation itself is unreasonable or in conflict with any statute. Pierce’s third assignment

of error is overruled.

                                     III. Conclusion

       {¶ 23} We find that Pierce’s assignments of error lack merit. Therefore, we affirm

the trial court’s decision of September 19, 2016.



                                     .............



DONOVAN, J. and WELBAUM, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
James E. Pierce
Hon. Barbara P. Gorman
