[Cite as State v. Lumpkin, 2013-Ohio-3105.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 12-CA-83
TROY LUMPKIN

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                      Appeal from the Licking County Court of
                                              Common Pleas, Case No. 09CR143


JUDGMENT:                                     Affirmed


DATE OF JUDGMENT ENTRY:                        July 15, 2013


APPEARANCES:


For Plaintiff-Appellee                        For Defendant-Appellant


KENNETH W. OSWALT                             WILLIAM T. CRAMER
LICKING COUNTY PROSECUTOR                     470 Olde Worthington Road, Suite 200
                                              Westerville, Ohio 43082
BY: JUSTIN T. RADIC
Assistant Prosecuting Attorney
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 12-CA-83                                                           2

Hoffman, P.J.


         {¶1}   Defendant-appellant Troy Lumpkin appeals the judgment entered by the

Licking County Court of Common Pleas denying his motion for an allied-offense

analysis. Plaintiff-appellee is the state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}   Appellant was convicted of trafficking in crack cocaine in the vicinity of a

juvenile, in violation of R.C. 2925.03(A)(1)(C)(4)(c); trafficking in crack cocaine, in

violation of R.C. 2925.03(A)(1)(C)(4)(c); possession of crack cocaine, in violation of

R.C. 2925.11(A)(C)(4)(c); possession of drug paraphernalia, in violation of R.C.

2925.14(C)(1); possession of marijuana, in violation of R.C. 2925.11(A)(C)(3)(a); having

weapons under disability, in violation of R.C. 2923.13(A)(3); two firearm specifications,

in violation of R.C. 2929.14(D) & R.C. 2941.141; and three forfeiture specifications, in

violation of R.C. 2941.1417 & R.C. 2981.02. He was sentenced to 14 1/2 years of

incarceration.

         {¶3}   Appellant filed a direct appeal from his conviction. On June 28, 2010, this

Court affirmed Appellant's conviction in State v. Lumpkin, 5th Dist. No. 2009CA00109,

2010-Ohio-3124.

         {¶4}   The Ohio Supreme Court denied Appellant's motion for a delayed appeal.

         {¶5}   On May 18, 2012, this Court dismissed Appellant's appeal from the trial

court's denial of a request for a merger hearing.          State v. Lumpkin, 5th Dist. No.

12CA0013.




1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Licking County, Case No. 12-CA-83                                                        3


       {¶6}   On October 2, 2012, the trial court conducted a resentencing hearing

limited to the proper imposition of post-release control.

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

       {¶8}   “I. APPELLANT’S STATE AND FEDERAL CONSTITUTIONAL RIGHTS

TO DUE PROCESS AND PROTECTIONS FROM DOUBLE JEOPARDY WERE

VIOLATED WHEN THE COURT IMPOSED MULTIPLE SENTENCES FOR ALLIED

OFFENSES IN VIOLATION OF R.C. 2941.25.”

                                                 I.

       {¶9}   In the sole assignment of error, Appellant maintains the trial court erred in

imposing multiple sentences for allied offenses in violation of R.C. 2941.25. Appellant

relies upon the Ohio Supreme Court decision in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314.

       {¶10} As set forth in the statement of the case, supra, the October 2, 2012

sentencing hearing was limited to the proper imposition of post-release control. Further,

Appellant's conviction was affirmed on direct appeal to this Court on June 28, 2010. On

May 18, 2012, this Court dismissed Appellant's appeal of the trial court’s denial of a

request for merger in State v. Lumpkin, 5th Dist. 12CA0013.

       {¶11} Based upon the above, Appellant's conviction and sentence were final on

June 28, 2010. The Ohio Supreme Court's holding in Johnson, supra, does not apply

retroactively. See, State v. Holliday, 5th Dist. No. 11CAA110104, 2012-Ohio-2376;

State v. Hickman, 5th Dist. 11CA54, 2012-Ohio-2182 citing State v. Parson, 2nd Dist.

24641, 2012–Ohio–730. 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
Licking County, Case No. 12-CA-83                                                      4


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.

      {¶12} Appellant's sole assignment of error is overruled.

      {¶13} The judgment of the Licking Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur

                                            ___________________________________
                                            HON. WILLIAM B. HOFFMAN


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY


                                            ___________________________________
                                            HON. CRAIG R. BALDWIN
Licking County, Case No. 12-CA-83                                                  5


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


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
TROY LUMPKIN                              :
                                          :
       Defendant-Appellant                :         Case No. 12-CA-83


       For the reason stated in our accompanying Opinion, the judgment of the Licking

Court of Common Pleas is affirmed. Costs to Appellant.




                                          ___________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
