[Cite as State v. Davis, 2014-Ohio-3591.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100645




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                        WILLIE DAVIS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-08-514855-A

        BEFORE: Keough, J., S. Gallagher, P.J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED:                    August 21, 2014
APPELLANT

Willie Davis
Inmate No. 563-213
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

         {¶1} Defendant-appellant, Willie Davis, appeals the trial court’s decision denying

his motion to correct his sentence. For the reasons that follow, we affirm.

         {¶2} In March 2009, Davis pleaded guilty to two counts of rape and one count of

kidnapping with a sexual motivation specification.         The court imposed the agreed

sentence of 25 years in prison with no possibility of early release. This court affirmed

Davis’s convictions on appeal.         State v. Davis, 8th Dist. Cuyahoga No. 93856,

2010-Ohio-4488, appeal not allowed State v. Davis, 2011-Ohio-376, 940 N.E.2d 986.

         {¶3} In September 2013, Davis filed a motion to correct his sentence, contending

that his rape and kidnapping convictions were allied offenses. The trial court denied his

motion, concluding that the doctrine of res judicata barred his collateral challenge.

Alternatively, the trial court found that the offenses were not allied because the offenses

involved separate victims. Davis appeals from this decision, raising two assignments of

error.

         {¶4} In his first assignment of error, Davis contends that the trial court committed

plain error when it failed to conduct a hearing prior to sentencing to determine whether

Counts 1, 5, and 9 were allied offenses subject to merger. He maintains that this failure

rendered his sentence void in violation of R.C. 2941.25 and the Fifth, Sixth, and

Fourteenth Amendments to the United States Constitution.

         {¶5} It is well established that res judicata bars the consideration of issues that

could have been raised on direct appeal.          State v. Saxon, 109 Ohio St. 3d 176,
2006-Ohio-1245, 826 N.E.2d 824, ¶ 16-17; State v. Hough, 8th Dist. Cuyahoga Nos.

98480 and 98482, 2013-Ohio-1543, ¶ 29. This court has recognized that the issue of

whether two offenses constitute allied offenses subject to merger must be raised on direct

appeal from a conviction, or res judicata will bar a subsequent attempt to raise the issue.

State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13 (whether the verdicts

on all counts can be used to support separate convictions for all offenses charged is

decided by the trial court prior to its determination of a defendant’s sentence; the time to

challenge a conviction based on allied offenses is through a direct appeal.)

       {¶6} In this case, Davis argued on direct appeal that he did not receive effective

assistance of counsel and that he was not competent to enter into a guilty plea. Davis

raised no issue regarding his sentence or whether the court erred in failing to consider

allied offenses prior to sentencing. Accordingly, his argument in this appeal with respect

to allied offenses is barred by the doctrine of res judicata because Davis could have raised

this issue in his direct appeal.

       {¶7} Moreover, even considering the merits of his appeal, we find that any

argument that these offenses were allied is without merit because Counts 1, 5, and 9 relate

to separate victims. Convictions relating to different victims are not allied offenses.

State v. Dix, 8th Dist. Cuyahoga No. 94791, 2011-Ohio-472, ¶ 22; see also State v.

Kwambana, 12th Dist. Clermont No. CA2013-12-092, 2014-Ohio-2582, ¶ 11.

Accordingly, the court did not err in denying Davis’s motion to correct his sentence and

his assignment of error is overruled.
       {¶8} In his second assignment of error, Davis contends that the trial court’s

October 29, 2013 journal entry denying his motion was not a final appealable order for

the purposes of R.C. 2505.02 that would give this court jurisdiction over this appeal

because (1) the trial court did not reach the merits of his motion, and (2) the journal entry

was not time-stamped or journalized.

       {¶9} We find Davis’s assignment of error lacks merit. As explained above, the

trial court was correct in concluding that res judicata barred Davis’s collateral challenge.

Nevertheless, the trial court did reach the merits of Davis’s motion because it found that

Davis’s rape and kidnapping convictions involved separate victims; thus, the offenses

were not allied.

       {¶10} Finally, a review of the certified record on appeal, including the docket,

shows that the trial court’s October 29, 2013 journal entry was filed and journalized with

the clerk of courts. Accordingly, Davis’s second assignment of error is overruled.

       {¶11} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
