[Cite as State v. Watts, 2016-Ohio-7072.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                    No. 16AP-196
v.                                                :            (C.P.C. No. 12CR-1721)

Matthew K. Watts,                                 :       (ACCELERATED CALENDAR)

                 Defendant-Appellant.             :




                                            D E C I S I O N

                                   Rendered on September 29, 2016


                 On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
                 Prichard, for appellee.

                 On brief: Matthew K. Watts, pro se.

                   APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

        {¶ 1} Defendant-appellant, Matthew K. Watts, appeals the decision and entry of
the Franklin County Court of Common Pleas denying his motion for Crim.R. 52(B)
asserting plain error. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} On September 12, 2012, appellant pled guilty to three counts of gross sexual
imposition, in violation of R.C. 2907.05, all offenses being felonies of the third degree.
Two other counts were nolled. Appellant was represented by counsel and the prosecutor
and appellant's counsel jointly recommended to the court that appellant be sentenced to
five years in prison on each count, with counts one and two being served concurrently, but
consecutively to count three, for a total of ten years. This recommendation is reflected in
No. 16AP-196                                                                                2


the entry of guilty plea. On the same day, the court accepted the recommendation and
sentenced appellant to serve a total of ten years in prison. Appellant did not appeal.
       {¶ 3} Almost two years later, appellant filed a motion for leave to appeal with this
court. We denied appellant leave in State v. Watts, 10th Dist. No. 14AP-550 (Aug. 28,
2014) (memorandum decision). Three months thereafter, appellant filed a motion for
modification of sentence with the trial court, which the trial court denied on
December 30, 2014.       Four months thereafter, appellant filed another petition for
postconviction relief, pursuant to R.C. 2953.21, and the trial court denied the same on
December 4, 2015. Finally, on February 10, 2016, appellant filed a motion for Crim.R.
52(B) asserting plain error. The trial court denied the same on February 25, 2016.
Appellant timely appealed.
II. Assignments of Error
       {¶ 4} Appellant appeals and assigns the following four assignments of error for
our review:
               I. TRIAL COURT FAILED TO CONDUCT A HEARING TO
               MAKE A DETERMINATION OF WEATHER [SIC] THE
               THIRD CHARGE WAS OF SIMILAR IMPORT.

               II. THE TRIAL COURT ABUSED ITS DISCRETION BY
               IMPOSING MAXIMUM CONSECUTIVE SENTENCES
               HEREIN.

               III. THE SENTENCE IMPOSED BY THE TRIAL COURT IS
               DISPROPORTIONATE     AND    HAS   CAUSED    AN
               UNNECESSARY BURDEN TO THE STATE OF OHIO.

               IV. THE SENTENCING COURT ERRED IN SENTENCING
               DEFENDANT TO A MANDATORY SENTENCE AND THE
               SENTENCES ARE CONTRARY TO OHIO SENTENCING
               LAWS.

Appellant's assignments of error are interrelated and we will address them together.
III. Discussion
       {¶ 5} To begin, we note that this court is not aware of any such motion for
"criminal rule 52(B) asserting a plain error." (Emphasis omitted.) (Feb. 10, 2016 Motion.)
Nevertheless, given the procedural history of this case, we construe this motion as a
petition for postconviction relief. It appears plaintiff-appellee, State of Ohio, has done the
No. 16AP-196                                                                              3


same in its brief.    Ohio's process for seeking postconviction relief from a criminal
conviction is set forth in R.C. 2953.21. R.C. 2953.21(A)(1)(a) provides:
               Any person who has been convicted of a criminal offense * * *
               and who claims that there was such a denial or infringement
               of the person's rights as to render the judgment void or
               voidable under the Ohio Constitution or the Constitution of
               the United States, * * * may file a petition in the court that
               imposed sentence, stating the grounds for relief relied upon,
               and asking the court to vacate or set aside the judgment or
               sentence or to grant other appropriate relief.

       {¶ 6} We review a trial court's ruling on a petition for postconviction relief under
an abuse of discretion standard. State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-
2749, ¶ 11, citing State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679. An abuse of
discretion occurs where a trial court is "unreasonable, arbitrary or unconscionable" in
reaching its decision. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
       {¶ 7} "In any proceeding except a direct appeal from that judgment, the doctrine
of res judicata bars convicted defendants who were represented by counsel from raising
or litigating any defense or alleged due process violation resulting in a conviction, where
that defense or error was previously raised (or could have been raised) on direct appeal."
State v. Bethel, 10th Dist. No. 07AP-810, 2008-Ohio-2697, ¶ 18, citing State v. Cole, 2
Ohio St.3d 112, 113 (1982).
       {¶ 8} Furthermore, res judicata applies to bar the raising of merger issues. State
v. Monroe, 10th Dist. No. 13AP-598, 2015-Ohio-844, ¶ 38, citing State v. Ayala, 10th
Dist. No. 12AP-1071, 2013-Ohio-1875, ¶ 13-14. " '[T]he res judicata bar applies to any
post-judgment proceeding other than the direct appeal challenging a conviction
including motions to "modify" a sentence. Since appellant could have raised merger
issues at the time of sentencing or thereafter on direct appeal, those issues are barred.' "
Id., quoting Ayala at ¶ 13. A claim of error and failing to merge counts for sentencing
purposes is not a void sentence issue. State v. Greenberg, 10th Dist. No. 12AP-11, 2012-
Ohio-3975, ¶ 12. "Merger claims are non-jurisdictional and barred by res judicata."
Monroe at ¶ 38, citing Smith v. Voorhies, 119 Ohio St.3d 345, 2008-Ohio-4479.
       {¶ 9} The state argues that appellant also could have raised on direct appeal the
sentencing error claims contained in his motion now and that these claims are therefore
No. 16AP-196                                                                            4


barred by the doctrine of res judicata. We agree. The trial court entered final judgment
in this case on September 12, 2012. Appellant did not appeal. He is therefore barred by
res judicata from raising his sentencing error claims now.
       {¶ 10} We also note that a defendant seeking to challenge a conviction or sentence
through a petition for postconviction relief under R.C. 2953.21 is not automatically
entitled to a hearing. State v. Calhoun, 86 Ohio St.3d 279, 282 (1999); State v. Jackson,
64 Ohio St.2d 107 (1980).         To warrant an evidentiary hearing on a petition for
postconviction relief, a petitioner bears the initial burden of providing evidence that
demonstrates a cognizable claim of constitutional error.         R.C. 2953.21(C); State v.
Hessler, 10th Dist. No. 01AP-1011, 2002-Ohio-3321, ¶ 24. A trial court may also dismiss a
petition for postconviction relief without holding an evidentiary hearing when the claims
raised in the petition are barred by the doctrine of res judicata. State v. Montgomery,
10th Dist. No. 13AP-1091, 2014-Ohio-5756, ¶ 16-18, citing State v. Szefcyk, 77 Ohio St.3d
93 (1996), syllabus, approving and following State v. Perry, 10 Ohio St.2d 175 (1967),
paragraph nine of the syllabus.
       {¶ 11} The trial court did not abuse its discretion in not holding a hearing and in
denying appellant's motion for Crim.R. 52(B) asserting plain error. Accordingly, we
overrule appellant's first, second, third, and fourth assignments of error.
IV. Conclusion
       {¶ 12} For the reasons stated above, we overrule appellant's four assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                       Judgement affirmed.
                           TYACK and BRUNNER, JJ., concur.
