[Cite as State v. Rice, 2012-Ohio-4084.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 2011-CA-74
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 2009-CR-20
v.                                                :
                                                  :
JAMIE L. RICE                                     :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                :
                                                  :
                                               ...........

                                               OPINION

                            Rendered on the 7th day of September, 2012.

                                               ...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg.
#0087864, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

JAMIE L. RICE, #A609174, Allen Correctional Institution, C-Unit, 2338 North West Street,
Lima, Ohio 45801
       Attorney for Defendant-Appellant

                                                       .............

HALL, J.

        {¶ 1}     Jamie Rice appeals pro se from the trial court’s dismissal of his “motion to
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vacate allied offenses and costs.”

        {¶ 2}     Rice filed the foregoing motion in November 2011, more than two years after

his July 2009 conviction and sentence following a guilty plea to charges of rape, child

endangering, and gross sexual imposition. In his motion, Rice asked the trial court “to vacate

the allied offenses and various costs that were imposed against him in his plea and sentencing

hearing * * *.” (Doc. #66 at 1). In support, Rice argued that rape, child endangering, and gross

sexual imposition were allied offenses of similar import. He also challenged the trial court’s

imposition of costs, asserting: (1) that court costs should not have been imposed because he is

indigent, (2) that his attorney provided ineffective assistance by not objecting to court costs,

and (3) that “court costs” do not include “costs of prosecution,” which have been included on

the clerk’s cost bill.

        {¶ 3}     The State moved to dismiss Rice’s motion, arguing that it was, at best, an

untimely petition for post-conviction relief. (Doc. #69). The trial court dismissed the motion

on November 30, 2011, finding that it “no longer [had] jurisdiction to hear any motions in the

form presented by the defendant.” The trial court added: “If the Defendant is trying to file a

post-conviction relief petition, this motion does not comply with the criminal rules and Ohio

Revised Code.” (Doc. #71). On December 27, 2011, Rice appealed from the trial court’s

dismissal of his motion.

        {¶ 4}     Before turning to Rice’s assignments of error, we pause to address the State’s

claim that his appeal is untimely and that we lack jurisdiction over it. The State notes that Rice

filed his notice of appeal more than two years after his conviction. As a result, the State

contends we lack jurisdiction under App.R. 4(A), which requires a notice of appeal to be filed
                                                                                               3


within thirty days of the judgment being appealed. The State adds that “[a]ny appeal by

Appellant would be limited to the trial court’s decision with regard to his Motion to Vacate

Allied Offenses and Costs, however, neither of Appellant’s assignments of error discusses that

decision.”

        {¶ 5}   Although we agree with the State’s logic, we do not agree that it deprives us

of jurisdiction. Rice timely appealed from the trial court’s dismissal of his motion to vacate

allied offenses and costs. Therefore, we have jurisdiction over the appeal of that decision.

Whether the issues he raises on appeal are related to the trial court’s dismissal entry is a

separate, non-jurisdictional question. If the issues Rice raises are unrelated to the trial court’s

ruling on his motion, then his appeal may lack merit. But that would not affect our

jurisdiction.   Rice’s two assignments of error are:

                                  First Assignment of Error

        THE     TRIAL     COURT      ERRED       IN    FAILING     TO     MERGE       THE

        CONVICTIONS OF THE ALLIED OFFENSES OF SIMILAR IMPORT

        PURSUANT TO OHIO REVISED CODE SECTION 2941.25.

                                 Second Assignment of Error

        THE TRIAL COURT ERRED IN ASSESSING COSTS AGAINST THE

        APPELLANT THAT WERE NOT IMPOSED AT SENTENCING.

        {¶ 6}   In his first assignment of error, Rice asserts that the trial court should have

granted his motion to merge his convictions because they were allied offenses of similar

import. This argument lacks merit for at least three reasons. First, Rice’s motion appears to be

the functional equivalent of a petition for post-conviction relief. The motion was untimely
                                                                                            4


because it was not filed within 180 days after the time for filing an appeal expired, and the

conditions for extending that time were not satisfied. See R.C. 2953.21(A)(2) and R.C.

2953.23(A). Second, Rice could have raised his allied-offense argument in a direct appeal. Res

judicata precludes him from doing so now. State v. Pound, 2d Dist. Montgomery Nos. 24789,

24980, 2012-Ohio-3392, ¶14 (“[W]hen an appellant does not raise the issue of merger in a

timely direct appeal, the challenge is barred by the doctrine of res judicata.”). Third, Rice’s

crimes were not allied offenses of similar import. The rape conviction involved inserting a

device into a four-year-old child’s anal cavity. The child-endangering conviction involved

administering excessive corporal punishment. The gross sexual imposition conviction

involved touching the child’s penis. (Doc. #29). Because these offenses involved separate

conduct and a separate animus, merger was not required. See, generally, State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Accordingly, the first assignment of error

is overruled.

       {¶ 7}    In his second assignment of error, Rice claims court costs should not have

been imposed because he is indigent. He also contends his trial counsel provided ineffective

assistance by not objecting to court costs. Once again, res judicata precludes Rice from raising

these issues, which could have been pursued on direct appeal. As for Rice’s claim that “court

costs” differ from “costs of prosecution,” we disagree. Under R.C. 2947.23(A)(1), the trial

court was required to order Rice to pay the “costs of prosecution.” We note that “costs of

prosecution” and “court costs” have been found to be synonymous. See State v. Christy, 3d

Dist. Wyandot No. 16-04-04, 2004-Ohio-6963, ¶ 22 (“Although the statute does not define the

term ‘costs of prosecution,’ we conclude after review that the term means ‘court costs’ in a
                                                                                                                                      5


criminal case.”).

         {¶ 8}        Finally, Rice challenges the adequacy and accuracy of a cost statement dated

July 31, 2009. The statement includes separate clerk fees, sheriff fees, and steno fees totaling

$477.89.1 Because the statement was prepared the same day Rice’s final judgment entry was

filed, he could have raised any issues concerning the statement on direct appeal. He cannot

properly raise those issues more than two years later in an untimely motion to vacate. The

second assignment of error is overruled.

         {¶ 9}        The judgment of the Greene County Common Pleas Court is affirmed.

                                                                        .............

GRADY, P.J., and DONOVAN, J., concur.



Copies mailed to:

Stephen K. Haller
Nathaniel R. Luken
Jamie L. Rice
Hon. Steven Wolaver




            1
             A copy of the statement is attached to Rice’s appellate brief as exhibit A-3. A similar statement in the same amount is included in
 the record below.
