[Cite as State v. Dillard, 2014-Ohio-439.]

                            STATE OF OHIO, JEFFERSON COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )
        PLAINTIFF-APPELLEE,                       )
                                                  )              CASE NO. 12 JE 29
V.                                                )
                                                  )                   OPINION
QUENTIN DILLARD,                                  )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Court of Common
                                                  Pleas of Jefferson County, Ohio
                                                  Case No. 03CR111

JUDGMENT:                                         Affirmed

APPEARANCES:
For Plaintiff-Appellee                            Jane Hanlin
                                                  Prosecutor
                                                  Jefferson County Justice Center
                                                  16001 S.R. 7
                                                  Steubenville, Ohio 43952

For Defendant-Appellant                           Quentin Dillard, Pro-se
                                                  A452749
                                                  Warren Correctional Institution
                                                  P.O. Box 120
                                                  Lebanon, Ohio 45036


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                  Dated: February 5, 2014
[Cite as State v. Dillard, 2014-Ohio-439.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Quentin Dillard, appeals a decision of the
Jefferson County Common Pleas Court overruling his “Motion to Correct a Void
Sentence and for Resentencing.”
        {¶2}     On August 26, 2003, subsequent to a jury trial, Dillard was found guilty
of five first-degree felony offenses and four second-degree felony offenses, including
one count of aggravated burglary, four counts of aggravated robbery, three counts of
felonious assault, one count of improperly discharging a firearm into a habitation, and
seven accompanying firearm specifications. The trial court conducted a sentencing
hearing the next day, and imposed a sentence of ten years for aggravated burglary,
five years for each aggravated robbery count, eight years for one count of felonious
assault and five years for each of the remaining two counts of felonious assault, five
years for improper discharge of a firearm, and three years for each firearm
specification. The trial court ran some of the robbery and assault sentences as well
as some of the firearm specifications concurrently to each other but consecutively
with all other counts, for a total sentence of forty-seven years.
        {¶3}     Dillard filed a timely appeal and argued that the trial court erroneously
failed to declare a mistrial, prohibited alibi witness testimony, and erroneously
considered Dillard's gang affiliation. Dillard also argued that the jury verdict was
against the manifest weight of the evidence, and that the trial court abused its
discretion by imposing maximum and consecutive sentences. This Court affirmed all
of Dillard's convictions but remanded the case for resentencing pursuant to State v.
Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473. State v. Dillard, 7th
Dist. No. 03 JE 32, 2005-Ohio-1656, (Dillard I). Specifically, this Court affirmed the
trial court's decision to impose maximum sentences, and additionally found that the
sentencing entry included all necessary findings to justify consecutive sentences, but
found that the trial court did not state the findings on the record pursuant to R.C.
2929.14(E)(4) before imposing consecutive sentences, as required by Comer. Dillard
I, at ¶ 127-128, 135-136.
        {¶4}     At the April 18, 2005 resentencing hearing the trial court stated its
findings on the record pursuant to R.C. 2929.14(E)(4) to support imposing
consecutive sentences for several counts. The trial court imposed the same forty-
seven year sentence, and repeated its explanation of post-release control and
firearm disability ramifications. Dillard raised no objections during the resentencing
hearing. The judgment entry of sentence was filed on April 28, 2005, and Dillard
timely filed an appeal.
       {¶5}   Dillard argued in his second appeal that the trial court conducted
improper judicial fact-finding in order to impose maximum sentences against him, in
violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403
(2004) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005). While Dillard's case was pending with this Court, the Ohio Supreme Court
decided State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. On June
28, 2006, this Court reversed and remanded the trial court's resentencing decision in
light of Foster. State v. Dillard, 7th Dist. No. 05 JE 22, 2006-Ohio-3524 (Dillard II).
This Court held that, because the trial court followed the dictates of the now
unconstitutional R.C. 2929.14(C) and R.C. 2929.14(E)(4), Dillard's sentence had to
be vacated and remanded for resentencing. Id. at ¶ 11.
       {¶6}   Dillard's third sentencing hearing took place on July 24, 2006. The trial
court stated that “[t]he state of the record still is what it was. The findings in the
original sentencing were true and are still true. So, by reference I am finding all those
again.” The trial court sua sponte held that it must order all of the three-year firearm
specifications to be served concurrently, for a total of three instead of nine years. The
trial court otherwise imposed the same sentences for each offense, for a new total of
forty-one years. The trial court repeated its explanation of post-release control and
firearm disability ramifications. Dillard raised no objections during the resentencing
hearing. At the end of the sentencing hearing, Dillard indicated that he would retain
the same attorney to pursue an appeal, but then indicated that he needed to have an
attorney appointed.
       {¶7}   For reasons not apparent in the record, the trial court filed the judgment
entry of sentence one year later, on July 17, 2007. State v. Dillard, 7th Dist. No. 08
JE 35, 2010-Ohio-1407, ¶ 9 (Dillard III). The judgment entry stated that the trial court
considered the purposes and principles of sentencing pursuant to R.C. 2929.11 and
balanced the seriousness and recidivism factors pursuant to R.C. 2929.12. The
judgment entry listed the factual findings and considerations supporting the sentence
as it had in the previous two sentencing entries, and described the forty-one year
sentence.
       {¶8}   On October 19, 2007, the trial court filed an order appointing counsel to
pursue a delayed appeal, noting that Dillard did not retain counsel subsequent to his
July 24, 2006 resentencing hearing. On October 31, 2008, Dillard filed a pro se
notice of appeal, affidavit of indigency, and motion for leave to file a delayed appeal,
stating that he had never been contacted by the counsel that had been appointed on
October 19, 2007. On November 20, 2008, this court granted Dillard's motion, and
appointed the Ohio Public Defender to assist Dillard with his appeal. Pursuant to
Dillard's motion, this court relieved appointed counsel and permitted Dillard to
proceed in a pro se capacity on December 31, 2008.
       {¶9}   In his third appeal, Dillard argued that the trial court erroneously
prevented him from calling alibi witnesses to testify without prior notice, that the trial
court erroneously failed to merge certain allied offenses of similar import, and that his
convictions on five of the counts were not supported by sufficient evidence.
Additionally, Dillard asserted that the trial court conducted improper fact-finding
regarding merger in its third sentencing determination in contravention of Foster and
the previous directives of this Court. Upon review, this Court found Dillard’s
arguments to be meritless. Dillard III, at ¶ 30.
       {¶10} Specifically, this Court held that Dillard’s first and third assignments of
error were barred by res judicata because, respectively, Dillard raised the alibi-
witness argument in his original appeal and because he could have, but did not, raise
the sufficiency of the evidence issue. Res judicata likewise barred Dillard’s second
assignment of error because a merger analysis constitutes a review of underlying
convictions and this Court had already affirmed Dillard’s convictions in Dillard I. See
Dillard III, at ¶ 23. Finally, this Court also overruled Dillard’s fourth assignment of
error on the grounds that a trial court’s decision that a defendant’s convictions are not
allied offenses of similar import does not involve judicial fact-finding; that the trial
court’s sentence was within the relevant statutory range; and that nothing else in the
record suggested that the trial court’s sentencing decision was otherwise
unreasonable, arbitrary, or unconscionable. Accordingly, this Court reaffirmed the
trial court’s July 17, 2007 resentencing judgment. See Dillard III, at ¶ 28-29.
       {¶11} On March 31, 2011, Dillard filed both a “Motion for Leave to Appeal” in
this Court, and a “Motion for Resentencing” in the Jefferson County Common Pleas
Court, requesting a Merger Hearing. On April 5, 2011, the trial court overruled that
motion, holding that it lacked jurisdiction to re-sentence because Dillard filed both an
appeal in this Court and the resentencing motion simultaneously, and because
Dillard’s sentencing had become final by way of appeal.
       {¶12} On May 2, 2011, Dillard filed a second Motion for Resentencing in the
Jefferson County Common Pleas Court, again requesting a Merger Hearing. On May
20, 2011, the trial court again overruled Dillard’s motion.
       {¶13} On June 10, 2011, Dillard timely appealed that decision in this Court
and on October 28, 2011, this Court, sua sponte, granted Dillard thirty days to file
assignments of error and brief. Thereafter, this Court sua sponte dismissed Dillard’s
appeal because he failed to timely prosecute it under the Ohio Rules of Appellate
Procedure.
       {¶14} On June 6, 2012, Dillard filed a “Motion to Correct a Void Sentence and
for Resentencing” in the Jefferson County Common Pleas Court. Dillard attached a
memorandum in support arguing that under the Ohio Supreme Court’s holding in
State v. Johnson, which was decided after Dillard III, his sentence is void. 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Johnson held: “[w]hen determining
whether two offenses are allied offenses of similar import subject to merger under
R.C. 2941.25, the conduct of the accused must be considered.” Id. at syllabus.
However, while changing the way courts are to analyze the issue of allied offenses of
similar import, Johnson did not provide a controlling test to use because it does not
contain a majority opinion. See State v. Ryan, 7th Dist. No. 10-MA-173, 2012-Ohio-
1265, ¶ 50. Rather, “[o]ur only new guidance is to consider the defendant’s conduct
and thus the particular facts of each case to determine whether the offenses are of
similar import.” Id., quoting State v. Gardner, 7th Dist. No. 10-MA-52, 2011-Ohio-
2644, ¶ 23. Nonetheless, Dillard asserted that under Johnson, certain offenses of his
were allied offenses, and that accordingly, his convictions for those offenses should
be merged. Additionally, Dillard asserted that his sentence did not comport with due
process. On this point, Dillard suggested that his trial counsel was ineffective and that
he was precluded from raising an ineffective assistance of counsel claim on appeal
because his trial counsel and his counsel on appeal were the same.
       {¶15} On October 22, 2012, the trial court overruled Dillard’s “Motion to
Correct a Void Sentence and for Resentencing,” along with all other pending
motions.
       {¶16} This appeal followed.
       {¶17} In his fourth appeal in this Court, Dillard lists two assignments of error
which he combines in his argument.
       {¶18} In the first, Dillard argues that:

              A SENTENCE IMPOSED WHICH EXCEEDS A SENTENCE
       MANDATED BY LAW IS VOID. APPELLANT RECEIVED AN
       EXCESSIVE, VOID SENTENCE WHICH VIOLATES DUE PROCESS.

       {¶19} In the second, Dillard argues that:

              APPELLANT’S COUNSEL ON APPEAL WAS THE SAME AS
       HIS TRIAL COUNSEL, AND THIS CONFLICT OF INTEREST
       PREVENTED         COUNSEL        FROM       ASSIGNING      INEFFECTIVE
       ASSISTANCE OF COUNSEL ON APPEAL FOR NOT ENSURING
       THAT    APPELLANT’S        ALLIED     OFFENSES      WERE      PROPERLY
       MERGED.

       {¶20} Under these two assignments, Dillard ultimately suggests that some of
his offenses are allied offenses of similar import and should be merged. As
aforementioned, in Dillard III this Court held that this same merger argument was
barred by res judicata because Dillard’s convictions had already been affirmed. Thus,
in support of his merger claim this time around, Dillard further suggests that his
counsel was ineffective and that he would have asserted and prevailed on the
merger issue in his original appeal before this Court affirmed his convictions had he
been appointed different counsel. However, Dillard asserts, because his trial counsel
also represented him on appeal, he was precluded from obtaining new counsel by
asserting ineffective assistance of counsel in his initial direct appeal. Dillard also
implies that he did not raise ineffective assistance of counsel in his first pro se appeal
(Dillard III), because at that time, “he was unaware that it was inappropriate for
counsel at trial to also represent the same defendant on appeal.”
       {¶21} It is well settled that “any issue that could have been raised on direct
appeal and was not is res judicata and not subject to review in subsequent
proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824,
¶ 16. Moreover, “[t]he Ohio cases which appear to absolutely prohibit the review of
an ineffectiveness of counsel argument where trial counsel continues to represent on
appeal are based on a misreading of certain post-conviction relief and habeas
decisions.” State v. Harris, 7th Dist. No. 00 BA 26, 2002-Ohio-2411, ¶ 23. Rather,
“there does not appear to be an absolute bar to arguing one’s own ineffectiveness in
federal criminal appeals.” Id., at ¶ 22, citing Barker v. United States, 7 F.3d 629, 632
(7th Cir.1993). Thus, counsel who represents defendant both at trial and on appeal is
not barred from arguing ineffective assistance of counsel on direct appeal. See
Harris, at ¶ 22-27 (distinguishing post-conviction relief appeals from direct appeals in
holding that counsel who represents a defendant both at trial and on appeal may
argue ineffective assistance on direct appeal). Accordingly, contrary to his assertions,
Dillard was not precluded by law from raising ineffective assistance of counsel in his
first direct appeal despite the fact that his appellate counsel also represented him at
trial. Additionally, Dillard could have, and should have, raised this issue in his first pro
se appeal. Because he did not raise this issue in either instance, he is precluded by
the doctrine of res judicata from litigating this issue in this proceeding.
       {¶22} That said, Dillard further asserts that the trial court did not adequately
address the merits of his motion and that State v. Johnson, supra, which post-dates
this Court’s decision in Dillard III, should be applied retroactively to his 2003
conviction and sentencing. Dillard suggests that his sentence is not in accordance
with Johnson and is thus void because it “exceeds a sentence mandated by law.”
Additionally, as this Court dismissed Dillard’s merger claim in Dillard III on res
judicata grounds, Dillard further asserts that res judicata does not apply here
because he raised the merger issue on a direct appeal and this Court issued an
adverse ruling on the basis of unsettled law.
       {¶23} Dillard is incorrect. “The majority of Ohio’s Appellate Districts believe
that the issue of merger must be raised in an appellant’s first direct appeal, or else it
is barred by res judicata.” Dillard III, at ¶ 20, citing State v. Howard, 2d Dist. No. 2008
CA 87, 2009-Ohio-3432, ¶ 9-10 (holding that res judicata barred the court’s
consideration of appellant’s merger of allied offenses of similar import claim because
“it could have been made in [appellant’s] original direct appeal”); see also State v.
Parson, 2d Dist. No. 24641, 2012-Ohio-730, ¶ 10, citing Smith v. Voorhies, 119 Ohio
St.3d 345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10-11 for the proposition that “‘allied-
offense claims are nonjurisdictional,’ and thus, barred by the doctrine of res judicata
where they were raised, or could have been raised, on direct appeal.”
       {¶24} Here, Dillard did not raise the issue of merger in his first, or even in his
second, direct appeal. Dillard seems to suggest that he failed to do so because his
counsel was ineffective and he could not raise ineffective assistance on appeal to
obtain different counsel who would have in turn raised the merger issue. Even if this
claim were a valid way around res judicata on the merger issue, as aforementioned,
the claim itself is barred by res judicata. Thus, whereas res judicata barred Dillard’s
merger claim in Dillard III because this Court had already affirmed Dillard’s
convictions, res judicata bars review in the instant case because Dillard failed to raise
the merger issue in his first direct appeal.
       {¶25} Nonetheless, even if res judicata did not bar review, Dillard’s argument
would still be meritless because Johnson is inapplicable here. “Johnson identified a
change in the manner in which a state law is interpreted and applied. It is not a
United States Supreme Court case, and thus, does not identify any new, retroactive,
federal or state right recognized by the United States Supreme Court.” State v.
Norris, 7th Dist. No. 11 MO 4, 2013-Ohio-866, ¶ 14. Moreover, “[a] new judicial ruling
may be applied only to cases that are pending on the announcement date.” Ali v.
State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819 N.E.2d 687, ¶ 6, citing State v.
Evans, 32 Ohio St.2d 185, 186, 291 N.E.2d 466 (1972). Accordingly, this Court has
applied Johnson retroactively only in those cases in which an appeal was pending in
this Court when Johnson was announced. Compare State v. Burns, 7th Dist. No.09-
MA-193, 2012-Ohio-2698, ¶ 64 (applying Johnson retroactively where appeal was
pending), and State v. Stoffer, 7th Dist.No.09-CO-1, 2011-Ohio-5133, ¶ 182 (applying
Johnson retroactively where appeal was pending), with State v. Norris, supra
(refusing to apply Johnson in a post-conviction relief case where no appeal was
pending at the time Johnson was announced).
       {¶26} Here, as aforementioned, Johnson was announced after this Court’s
decision in Dillard III. Moreover, while Dillard appealed (but never prosecuted the
appeal) to this Court in March 2011 after Johnson was released, he did not have an
appeal pending at the time of Johnson’s announcement. Accordingly, Dillard cannot
rely on Johnson.
       {¶27} In sum, the doctrine of res judicata bars both Dillard’s merger argument
and his ineffective assistance of counsel argument in support thereof because he
failed to raise both issues in his first direct appeal. Additionally, even if res judicata
did not apply here, Johnson cannot be applied retroactively to Dillard’s 2003
convictions and sentence, and thus, the analysis undertaken by the trial court would
remain in effect.
       {¶28} Accordingly, both of Dillard’s assignments of error are without merit.
       {¶29} The trial court’s judgment is affirmed.


Waite, J., concurs.

DeGenaro, P.J., concurs.
