[Cite as State v. Dillard, 2010-Ohio-1407.]

                            STATE OF OHIO, JEFFERSON COUNTY

                                    IN THE COURT OF APPEALS

                                          SEVENTH DISTRICT


STATE OF OHIO,                                  )
                                                )   CASE NO. 08 JE 35
        PLAINTIFF-APPELLEE,                     )
                                                )
        - VS -                                  )         OPINION
                                                )
QUENTIN DILLARD,                                )
                                                )
        DEFENDANT-APPELLANT.                    )


CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Common Pleas
                                                    Court, Case No. 03 CR 111.


JUDGMENT:                                           Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                             Attorney Thomas Straus
                                                    Jefferson County Prosecutor
                                                    Jefferson County Justice Center
                                                    16001 State Route 7
                                                    Steubenville, OH 43952

For Defendant-Appellant:                            Quentin Dillard, Pro-se
                                                    #A452-749
                                                    P.O. Box 57
                                                    Marion, OH 43302


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

                                                    Dated: March 25, 2010
                                                                                          -2-


DeGenaro, J.
       {¶1}    This delayed appeal comes for consideration upon the record in the trial
court and the parties' briefs. Pro-se Appellant, Quentin Dillard, appeals the July 17, 2007
decision of the Jefferson County Court of Common Pleas that resentenced Dillard to a
total of forty-one years in prison, pursuant to a Foster sentencing remand by this Court.
       {¶2}    Dillard argues that the trial court erroneously prevented him from calling an
alibi witness 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 counts were not
supported by sufficient evidence.        Additionally, Dillard asserts 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, his
arguments are meritless.
       {¶3}    Dillard's arguments regarding alibi testimony, merger and sufficiency of the
evidence were or could have been raised in his original appeal from the trial court's
August 29, 2003 Judgment Entry, and are barred by res judicata. The July 17, 2007
sentencing decision of the trial court adequately followed the sentencing directives of the
Ohio Supreme Court as well as this Court. Accordingly, the trial court's resentencing
decision is affirmed.
                              Facts and Procedural History
       {¶4}    On August 26, 2003, subsequent to a trial by jury, 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
                                                                                           -3-


concurrently to each other but consecutively with all other counts, for a total of forty-seven
years.
         {¶5}   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, at ¶42 (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 pursuant to R.C. 2929.14(E)(4) on the record before imposing
consecutive sentences, as required by Comer. Dillard I, at ¶127-128, 135-136.
         {¶6}   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.
         {¶7}   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 (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and
United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621. 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.
                                                                                          -4-


2929.14(E)(4), Dillard's sentence had to be vacated and remanded for resentencing. Id.
at ¶11.
        {¶8}   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 run all of the three-year firearm specifications
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 41 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.
        {¶9}   For reasons not apparent in the record, the trial court filed the judgment
entry of sentence one year later, on July 17, 2007. 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.
        {¶10} 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 pro-se capacity on December 31,
2008.
                                       Res Judicata
        {¶11} In his first and third assignments of error, which we will address together,
                                                                                        -5-


Dillard asserts respectively:
       {¶12} "Appellant was denied right to a fair trial when trial court impinged upon right
to call witnesses in his favor."
       {¶13} "Convictions for Counts Two, Four, Six, Seven & Eight are not supported
with sufficient evidence."
       {¶14} Dillard first contends that the trial court erroneously prevented him from
presenting an alibi witness at trial. The State counters that Dillard's argument is barred by
res judicata as it had already been raised in Dillard's original appeal. Dillard next
contends that the State did not present legally sufficient evidence to support his
convictions for two counts of felonious assault and three counts of aggravated robbery.
The State again asserts res judicata, arguing that Dillard has waived this argument, as it
could have been raised in his original appeal.
       {¶15} The Ohio Supreme Court has long recognized that "[u]nder the doctrine of
res judicata, a final judgment of conviction bars a convicted defendant who was
represented by counsel from raising and litigating * * * any defense or any claimed lack of
due process that was raised or could have been raised * * * on an appeal from that
judgment." State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104,
paragraph nine of the syllabus. 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, at ¶16.
       {¶16} In his original appeal, Dillard argued to this Court that the trial court
erroneously applied Crim.R. 12.1 to bar the presentation of alibi witness testimony.
Dillard I. This court rejected Dillard's argument and affirmed the ruling of the trial court.
Id. at ¶63. Because Dillard already had the opportunity to raise this argument in his
original appeal and did so, the doctrine of res judicata bars him from raising the argument
again in a subsequent appeal. Further, although Dillard argued that his convictions were
against the manifest weight of the evidence in his original appeal, he did not present a
sufficiency argument. Because the issue of sufficiency of the evidence could have been
                                                                                         -6-


raised in Dillard's initial appeal, the doctrine of res judicata precludes review of the issue
in a subsequent appeal. Accordingly, Dillard's first and third assignments of error are
meritless.
                      Merger of Allied Offenses of Similar Import
       {¶17} In his second assignment of error, Dillard asserts:
       {¶18} "Appellant received cumulative punishment for allied offenses of similar
import, thereby vitiating double jeopardy protections."
       {¶19} Dillard contends that two of his aggravated robbery convictions and one of
his felonious assault convictions should all have been merged into his conviction for
aggravated burglary due to eclipsing statutory elements, and that his remaining five
convictions should be merged into one conviction for aggravated robbery because the
offenses were committed at the same time and place. The State counters that Dillard has
waived this argument as he could have raised the issue in his original appeal.
       {¶20} There is not a complete consensus among the Ohio Districts as to whether
the issue of merger can be raised for the first time on a resentencing appeal. 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. See, e.g., State v.
Howard, 2d Dist. No. 2008 CA 87, 2009-Ohio-3432, at ¶9-10; State v. Lariva, 10th Dist.
No. 08AP-413, 2008-Ohio-5499, at ¶21; State v. Craig, 5th Dist. No. 2005CA16, 2005-
Ohio-5300, at ¶13-14. However, some courts have provided merger analysis in a
resentencing appeal without addressing the issue of res judicata. See, e.g., State v.
James, 12th Dist. No. CA2008-04-037, 2009-Ohio-1453, at ¶17-18; State v. Harris, 1st
Dist. No. C-060691, 2007-Ohio-5127, at ¶9-11.
       {¶21} The Ohio Supreme Court has ruled that "the effect of vacating the trial
court's original sentence is to place the parties in the same place as if there had been no
sentence." State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶13.
Because this Court vacated the trial court's previous sentencing decisions in Dillard I and
Dillard II, any issues related to this resentencing cannot be considered res judicata in the
present appeal. The renewed ability to address sentencing issues might lead one to
                                                                                         -7-


conclude that the issue of merger may therefore be addressed. However, though the
issue of merger is decided at the sentencing level of proceedings, a merger analysis does
not exclusively involve sentencing issues.
       {¶22} This Court has previously made reference to merger as being one of various
issues which are barred by res judicata in Foster resentencing appeals. State v. McLeod,
7th Dist. No. 07-JE-17, 2008-Ohio-3405, at ¶16, citing State v. Martin, 2d Dist. No. 21697,
2007-Ohio-3585. In Martin, the Second District noted that the analysis of merger
constituted a review of Martin's underlying convictions, and thus was not within the scope
of the trial court's limited review of sentencing issues on remand. Martin at ¶2-3. We
continue to agree with the reasoning of the Second District in Martin. Although the issue
of merger clearly affects a defendant's sentencing disposition, the question of whether the
jury's verdicts on all counts can be used to support separate convictions for all offenses
charged must be answered by the trial court prior to its determination of a defendant's
sentence. Id. See, also, State v. Harris, 122 Ohio St.3d 373, 2009-Ohio-3323, 911
N.E.2d 882, at ¶21-23 (holding that when two allied offenses of similar import are to be
merged, the prosecution must "elect which offense it will pursue after a finding of guilt but
prior to sentencing."); State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d
149, at ¶42-43 (stating that "the proper disposition of matters involving allied offenses of
similar import committed with a single animus is to merge the crimes into a single
conviction" and instructing the trial court to merge the two convictions and allow the State
to choose which conviction would remain for the purpose of sentencing).
       {¶23} Because this Court has already affirmed Dillard's convictions in Dillard I, the
trial court's jurisdiction was limited to a consideration of sentencing issues in its July 17,
2007 judgment entry. The trial court would not have been permitted to alter, merge or
vacate any of Dillard's underlying convictions. Dillard cannot make a collateral attack on
his underlying convictions through an appeal of his sentencing, and his argument is
barred by res judicata. Accordingly, Dillard's second assignment of error is meritless.
                                 Cumulative Sentences
       {¶24} In his fourth assignment of error, Dillard asserts:
                                                                                          -8-


       {¶25} "Trial court abused its discretion in reimposing same punishment, less the
merger of firearm specifications, pursuant to findings found to be unconstitutional and
prohibitions placed on cumulative sentences."
       {¶26} When reviewing the constitutionality of a felony sentence, an appellate court
must determine first whether the defendant has shown by clear and convincing evidence
that the sentence is contrary to law, and second whether the court committed an abuse of
discretion. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶4. A
trial court's sentence would be contrary to law if, for example, it were outside the statutory
range, in contravention of a statute, or decided pursuant to an unconstitutional statute.
Kalish at ¶36; State v. Thomas, 7th Dist. No. 06 MA 185, 2008-Ohio-1176, at ¶16. An
abuse of discretion is more than a mere error of law or judgment; it constitutes an
unreasonable, arbitrary or unconscionable use of discretion. Kalish at ¶19.
       {¶27} Dillard's sole objection within this analysis is that the trial court continued to
conduct improper judicial fact-finding to support its July 17, 2007 sentencing decision,
and thus thwarted the previous directives of this Court, as well as the decisions of Foster
and Blakely. However, the Ohio Supreme Court has explained that Foster eliminated
statutorily mandated judicial fact-finding pursuant to certain unconstitutional statute
sections, but did not prohibit the trial court from making such findings of fact. State v.
Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶25. See, also, Oregon
v. Ice (2009), ---U.S.---, 129 S.Ct. 711, 172 L.Ed.2d 517 (holding that the Sixth
Amendment does not prohibit judicial fact-finding for the imposition of consecutive
sentences).
       {¶28} More importantly, the judicial finding of fact challenged in this assignment of
error was the trial court's failure to find that any of Dillard's convictions should be merged
under R.C. 2941.25(B). Whether or not convictions are to be merged is a question of law
for the trial court to decide. See State v. Kent (1980), 68 Ohio App.2d 151,154, 22
O.O.3d 223, 428 N.E.2d 453. See, also, State v. Taylor, 7th Dist. No. 07 MA 115, 2009-
Ohio-3334, at ¶19. Thus, a trial court's decision that a defendant's convictions are not
allied offenses of similar import, and not subject to merger, does not involve judicial fact-
                                                                                      -9-


finding.
       {¶29} The trial court's sentencing decision was within the statutory range provided
for Dillard's convictions. The trial court's judgment entry of sentence indicated that the
trial court had 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 trial court did not indicate that it was bound to follow any of the sentencing statutes
now found to be unconstitutional. Upon review of the record and the judgment entry of
sentence, there is nothing to suggest that the trial court's sentencing decision was
unreasonable, arbitrary or unconscionable.        Given the foregoing, Dillard's fourth
assignment of error is meritless.
       {¶30} In conclusion, Dillard's first, second and third assignments of error are
meritless as they are barred by res judicata. Dillard's fourth assignment of error is
meritless as his sentence upon remand was not contrary to law, nor did the trial court
abuse its discretion in imposing that sentence.         Accordingly, the July 17, 2007
resentencing judgment of the trial court is affirmed.
Donofrio, J., concurs.
Waite, J., concurs.
