[Cite as State v. Norris, 2014-Ohio-2199.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. CT2013-0052
                                               :
DERRICK C. NORRIS                              :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Muskingum County
                                                   Court of Common Pleas, Case No.
                                                   CR2003-288A



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            May 19, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

D. MICHAEL HADDOX                                  DERRICK C. NORRIS pro se
MUSKINGUM CO. PROSECUTOR                           #478-560
ROBERT L. SMITH                                    Marion Correctional Institution
27 North Fifth St.                                 P.O. Box 57
Zanesville, OH 43701                               Marion, OH 43301
Muskingum County, Case No. CT2013-0052                                                       2

Delaney, J.

       {¶1} Appellant Derrick C. Norris appeals from the September 26, 2013 Journal

Entry of the Muskingum County Court of Common Pleas overruling his “Motion for Allied

Offense Determination.” Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary to our resolution of this appeal, nor is a restatement of the entire lengthy

appellate history. The following statement, therefore, references only those portions of

the case history relevant to the instant appeal.

       {¶3} On September 17, 2004, appellant entered negotiated pleas of guilty to

one count of murder with a firearm specification [R.C. 2903.02(A)(1)]; one count of

aggravated robbery [R.C. 2911.01(A)(1)]; and one count of tampering with evidence

[R.C. 2921.12(A)(1)]. He was sentenced to an aggregate prison term of 33 years to life.

In exchange for appellee’s recommendation of a 33-year-to-life sentence, appellant

agreed to waive his right to appeal maximum and/or consecutive sentences.

       {¶4} Appellant did not file a direct appeal of his conviction. Appellant did file a

number of petitions for post-conviction relief and appeals thereof, all of which were

unsuccessful.

       {¶5} On March 5, 2010, appellant filed a motion for sentencing, arguing the trial

court failed to properly advise him of post release control.      The trial court denied

appellant’s motion but we vacated that decision, finding appellant was entitled to a de

novo resentencing hearing on the authority of State v. Ketterer, 126 Ohio St.3d 448,
Muskingum County, Case No. CT2013-0052                                                3

2010-Ohio-3831, 932 N.E.2d 9. State v. Norris, 5th Dist. Muskingum No. CT10-0020,

2010-Ohio-6076, ¶ 17.

       {¶6} Appellant was thereupon resentenced with the requisite post release

control advisements, resulting in another flurry of petitions and appeals.

       {¶7} Relevant to the instant appeal, on September 9, 2013, appellant filed a

“Motion for Allied Offense Determination” which was overruled by the trial court on

October 17, 2013. It is from this decision appellant now appeals.

       {¶8} Appellant raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶9} “I.    WHETHER THE TRIAL COURT’S RECHARACTERIZATION OF

APPELLANT’S MOTION FOR ‘ALLIED OFFENSE DETERMINATION’ O.R.C. 2941.25;

AS A POSTCONVICTION RELIEF PETITION (FOR THE PURPOSE OF DENYING

RELIEF) OFFENDS DUE PROCESS AND FUNDAMENTAL FAIRNESS WHERE THE

RECORD CLEARLY REVEALS A PRIMA FACIE CASE FOR THE REQUESTED

RELIEF.”

       {¶10} “II. WHETHER THE DUTY TO ‘INQUIRE’ AND ‘DETERMINE’ WHETHER

MULTIPLE OFFENSES CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT IS

JURISDICTIONAL AND THEREFORE PLACES A MANDATORY DUTY ON THE

TRIAL COURT, OR WHETHER, O.R.C. 2941.25 IS ‘DISCRETIONARY,’ AND HENCE,

MAY BE WAIVED BY THE COURT OR THE DEFENDANT AND SUBJECT TO THE

APPLICATION OF THE DOCTRINE OF RES JUDICATA.”
Muskingum County, Case No. CT2013-0052                                                    4


                                      ANALYSIS

                                          I., II.

      {¶11} Appellant’s two assignments of error are related and will be decided

together. Although appellant’s argument is scattered and, as appellee points out, does

not follow the assignments of error, appellant essentially argues the trial court must

determine whether his convictions were allied offenses of similar import pursuant to

R.C. 2941.25. We disagree.

      {¶12} Appellant’s motion is barred by res judicata. We have found the issue of

merger of allied offenses to be barred by res judicata on a defendant's appeal from

resentencing to impose post-release control because the issue did not arise from the

resentencing hearing. See, State v. Oweis, 5th Dist. Delaware No. 11 CAA 06 0050,

2012-Ohio-443, ¶ 12, citing State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942

N.E.2d 332 and State v. Franklin, 8th Dist. No. 95991, 2011–Ohio–4953.

      {¶13} Appellant had a prior opportunity to litigate the allied-offenses claims he

sets forth in the instant appeal via a timely direct appeal from the sentencing hearing

and resulting judgment entry; his most recent round of arguments are therefore barred

under the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d

104 (1967). The Perry court explained the doctrine as follows:

             Under the doctrine of res judicata, a final judgment of conviction

             bars the convicted defendant from raising and litigating in any

             proceeding, except an appeal from that judgment, any defense or

             any claimed lack of due process that was raised or could have
Muskingum County, Case No. CT2013-0052                                                     5


             been raised by the defendant at the trial which resulted in that

             judgment of conviction or on an appeal from that judgment.

             State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).

      {¶14} Moreover, appellant’s arguments fail substantively.        While appellant’s

argument here does not specifically cite the Ohio Supreme Court’s most recent

pronouncement on allied offenses, he relies upon its rationale and indeed relied upon

Johnson extensively in his argument to the trial court. State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061. Johnson does not apply retroactively. State v.

Holliday, 5th Dist. Delaware No. 11CAA1101104, 2012-Ohio-2376, ¶ 16, citing State v.

Parson, 2nd Dist. Montgomery 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. Id., citing Ali v. State, 104 Ohio

St.3d 328, 2004–Ohio–6592. See also, State v. Hill, 5th Dist. Muskingum No. CT11-

0020, 2011-Ohio-3644, appeal not allowed, 130 Ohio St.3d 1439, 2011-Ohio-5883, 957

N.E.2d 301; State v. Pearson, 5th Dist. Licking No. 13-CA-59, 2013-Ohio-5690.

      {¶15} We find appellant’s assignments of error to be barred by res judicata and

the finality of appellate judgments. Appellant’s two assignments of error are overruled.
Muskingum County, Case No. CT2013-0052                                                6


                                  CONCLUSION

       {¶16} Appellant’s two assignments of error are overruled and the judgment of

the Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.
