[Cite as State v. Hickman, 2012-Ohio-2182.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. Julie A. Edwards, J.
-vs-
                                                 Case No. 11-CA-54
MARCUS HICKMAN

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Fairfield County Common
                                              Pleas Court, Case No. 2008-CR-115


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        May 11, 2012


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


GREGG MARX                                    MARCUS HICKMAN, PRO SE
Prosecuting Attorney                          Inmate # 598-815
JOCELYN S. KELLY                              Ross Correctional Institution
Assistant Prosecuting Attorney                P.O. Box 7010
Fairfield County, Ohio                        Chillicothe, Ohio 45601
239 W. Main St., Ste. 101
Lancaster, Ohio 43130
Fairfield County, Case No. 11-CA-54                                                 2

Hoffman, J.


       {¶1}   Defendant-appellant Marcus T. Hickman appeals the July 26, 2011

Judgment Entry entered by the Fairfield County Court of Common Pleas denying his

motion for resentencing. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On the evening of March 30, 2008, Donna Wade was walking in a

residential area to meet a female friend, Dreama Azbell. Upon meeting Dreama, the two

were approached by a white male, later to be identified as Dreama's brother, Tim

Azbell. Both Tim and Dreama Azbell held Donna Wade at gunpoint. A black male then

exited a parked, red Chevy Blazer and forced Donna Wade into the back seat of the

Blazer. Wade was seated directly behind the black male, who drove the vehicle around

town for a short period of time. The black male then stopped the vehicle, forced Wade

out of the vehicle, and proceeded to shoot her in the neck.

       {¶3}   Donna Wade survived the shooting, and was transported to an area

hospital. At the hospital, investigating officers from the Lancaster Police Department

presented Wade with a photo array of six black males. Donna Wade identified Appellant

from the photo array as the man who shot her in the neck.

       {¶4}   The Fairfield County Grand Jury indicted Appellant on attempted murder,

felonious assault, kidnapping, aggravated robbery and tampering with evidence. On

July 2, 2008, Appellant filed a motion to suppress the identification from the photo

lineup. Via Judgment Entry of October 7, 2008, the trial court overruled the motion to

suppress. Appellant subsequently entered a plea of no contest to the charges pursuant

to a negotiated plea agreement.
Fairfield County, Case No. 11-CA-54                                                          3


        {¶5}    On March 6, 2009, the trial court sentenced Appellant to a combined

twenty-six year prison term, with no possibility of judicial release.

        {¶6}    Appellant filed a direct appeal to this Court, arguing the trial court erred in

overruling his motion to suppress. In State v. Hickman, September 14, 2009, Fairfield

09-CA-15, 2009-Ohio-4911, this Court affirmed the holding of the trial court finding

Appellant could not demonstrate prejudice as result of the trial court's denial of his

motion to suppress because by pleading no contest, he waived the right to challenge his

identification at trial.

        {¶7}    On June 13, 2011, Appellant filed a motion to vacate and correct a void

sentence. The State filed a memorandum contra the motion on June 29, 2011. Via

Journal Entry of July 26, 2011, the trial court overruled the motion to vacate and correct

Appellant’s sentence.       The July 26, 2011 Entry was sent to Appellant at Warren

Correctional Institution.

        {¶8}    On October 13, 2011, Appellant filed a motion for delayed appeal

asserting he was transferred from Warren Correctional Institution to Ross Correctional

Institution, and, as a result, his mail was delayed, and he did not receive the judgment

entry denying the motion to vacate and correct until after the date for which the filing of

a timely appeal had passed. This Court granted the motion for delayed appeal.

        {¶9}    Appellant now appeals, assigning as error:

        {¶10} “I. THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT’S

MOTION FOR RESENTENCING TO MERGE ALLIED OFFENSES OF SIMILAR

IMPORT BECAUSE “THE COURT HAD THE BENEFIT OF A SUPPRESSION

HEARING IN THIS CASE.”
Fairfield County, Case No. 11-CA-54                                                     4


      {¶11} In the sole assignment of error, Appellant asserts the trial court erred in

imposing prison sentences on allied offenses. Appellant cites the Ohio Supreme Court

decision in State v. Johnson, 128 Ohio St.3d 153, (2010). In Johnson, the Supreme

Court held:

      {¶12} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one

without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) (‘It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.’ [Emphasis sic]). If the offenses correspond

to such a degree that the conduct of the defendant constituting commission of one

offense constitutes commission of the other, then the offenses are of similar import.

      {¶13} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

      {¶14} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

      {¶15} “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed
Fairfield County, Case No. 11-CA-54                                                   5


separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge.”

        {¶16} As set forth in the Statement of the Facts and Case, supra, Appellant’s

direct appeal to this Court was affirmed via Opinion and Judgment Entry of September

14, 2009. The issues raised herein were capable of being raised on direct appeal;

therefore, barred by res judicata.

        {¶17} Further, Appellant’s conviction and sentence were final prior to the Ohio

Supreme Court’s holding in Johnson, supra, which does not apply retroactively. A new

judicial ruling may be applied only to cases pending on the announcement date. State

v. Parson, 2nd Dist. No. 24641, 2012-Ohio-730. The new judicial ruling may not be

applied retroactively to a conviction that has become final, i.e., where the accused has

exhausted all of his appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-

6592.    Accordingly, Appellant’s arguments are barred by res judicata as they were

capable of being raised on direct appeal, and his reliance on Johnson is misplaced as

his conviction and sentence were already final prior to the date the Supreme Court

pronounced its holding therein.
Fairfield County, Case No. 11-CA-54                                                   6


      {¶18} The judgment of the Fairfield County Court of Common Pleas is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ W. Scott Gwin_____________________
                                          HON. W. SCOTT GWIN


                                          s/ Julie A. Edwards ___________________
                                          HON. JULIE A. EDWARDS
Fairfield County, Case No. 11-CA-54                                              7


           IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
MARCUS HICKMAN                             :
                                           :
       Defendant-Appellant                 :         Case No. 11-CA-54


       For the reasons stated in our accompanying Opinion, the judgment of the

Fairfield County Court of Common Pleas is affirmed. Costs to Appellant.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin_____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
