[Cite as State v. Clay, 2016-Ohio-424.]




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

 STATE OF OHIO                                  :
                                                :   Appellate Case No. 2015-CA-17
          Plaintiff-Appellee                    :
                                                :   Trial Court Case No. 07-CR-518
 v.                                             :
                                                :   (Criminal Appeal from
 JAMES H. CLAY                                  :    Common Pleas Court)
                                                :
          Defendant-Appellant                   :
                                                :

                                           ...........
                                          OPINION
                            Rendered on the 5th day of February, 2016.
                                           ...........

ANTHONY E. KENDELL, by JANNA L. PARKER, Atty. Reg. No. 0075261, Miami County
Prosecutor’s Office, 201 West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

JAMES H. CLAY, Inmate #588-915, Chillicothe Correctional Institution, Post Office
Box 5500, Chillicothe, Ohio 45601
      Defendant-Appellant, pro se

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

FAIN, J.

        {¶ 1} Defendant-appellant James H. Clay appeals from an order of the trial court
                                                                                            -2-


overruling his motion to vacate the portion of his sentence imposing court costs, fines,

and fees. Clay contends that the trial court’s failure to comply with the statutory

requirements of R.C. 2947.23 renders his sentence void. Following our own precedent

in State v. Isa, 2d Dist. Champaign No. 2014-CA-31, 2015-Ohio-2876, and in State v.

Thompson, 2d Dist. Montgomery No. 26364, 2015-Ohio-1984, we conclude that Clay’s

claim is barred by the doctrine of res judicata. Accordingly, the order of the trial court from

which this appeal is taken is Affirmed.



             I. Clay’s Conviction, Prior Appeals, and Post-Appeal Motion

       {¶ 2} In 2008, Clay was convicted of one count of Sexual Battery, in violation of

R.C. 2907.03(A)(7), a felony of the third degree. Clay was sentenced to serve a five-year

term of imprisonment, and to pay costs. With regard to costs, the sentencing entry

provides:

       2. That Defendant is to pay the costs herein. Further, the Court hereby

       grants judgment against the Defendant and in favor of the County of Miami,

       State of Ohio, in the amount of $5126.47 pursuant to Section 2947.23 of the

       Ohio Revised Code.

       ***

       Defendant is ordered to pay any restitution, all prosecution costs, court

       appointed counsel costs and any fees permitted pursuant to R.C.

       §2929.18(A)(4).

Dkt. #51.

       {¶ 3} On appeal, we overruled Clay’s six assignments of error, and affirmed his
                                                                                         -3-

conviction and sentence. State v. Clay, 2d Dist. Miami No. 08CA33, 2009-Ohio-5608.

None of the six assignments of error raised an issue involving sentencing. In 2010, Clay

filed a post-conviction motion to correct a void sentence. The basis of the motion was the

court’s alleged non-compliance with R.C. 2929.191, requiring notification of mandatory

post-release control. The motion was overruled after a hearing. We affirmed. State v.

Clay, 2d Dist. Miami No. 2010CA25, 2011-Ohio-2426. In 2011, Clay filed a motion for

re-sentencing, which was overruled by the trial court. In 2012 Clay filed a motion to

vacate and for resentencing, which was overruled by the trial court. We affirmed. State

v. Clay, 2d Dist. Miami No. 2011 CA 32, 2012-Ohio-3842. In 2012, Clay moved for a

declaratory judgment, asking to vacate the sex-offender classification portion of his

sentence. A sex-offender classification hearing was conducted, and the portion of Clay’s

sentence regarding sex-offender classification was modified. We affirmed. State v. Clay,

2d Dist. Miami No. 2013CA11, 2014-Ohio-950. In 2013, Clay filed a writ of procedendo in

this court, which was dismissed as moot. Our dismissal was affirmed by the Supreme

Court of Ohio. State ex rel. Clay v. Gee, 138 Ohio St. 3d 151, 2014-Ohio-48, 4 N.E.3d

1026. Clay has also been denied a writ of habeas corpus from the U.S. District Court for

the Southern District of Ohio. Clay v. Jenkins, S.D. Ohio No. 3:14-CV-319, 2015 WL

2091764 (May 5, 2015).

       {¶ 4} In 2015, Clay moved the trial court to vacate his sentence upon the ground

that the court failed to notify him at the time of his sentencing that he may be required to

perform community service if he is unable to pay the costs imposed as part of his

sentence. The trial court overruled the motion based on res judicata, finding that the

defendant did not raise this issue in the initial appeal from his conviction. From the order
                                                                                         -4-


overruling this motion, Clay appeals.

                                 II. Standard of Review

       {¶ 5} Clay’s assertion that the portion of his sentence assessing costs is void

raises a question of law. We review questions of law with a de novo standard of review.

Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 2002-Ohio-

2842, 769 N.E.2d 835, ¶ 4. De novo review requires an “independent review of the trial

court's decision without any deference to the trial court's determination.” Jackson v.

Internatl. Fiber, 169 Ohio App.3d 395, 2006-Ohio-5799, 863 N.E.2d 189, ¶ 17 (2d Dist.),

quoting State ex rel. AFSCME v. Taft, 156 Ohio App.3d 37, 2004-Ohio-493, 804 N.E.2d

88, ¶ 27 (3d Dist.).



             III. The Alleged Sentencing Error Is Barred by Res Judicata

       {¶ 6} Clay’s sole assignment of error asserts as follows:

              THE COURT COMMITTED PREJUDICIAL ERROR BY IMPOSING

       A FLAWED SANCTION OF COSTS.

       {¶ 7} Clay asserts that the trial court failed to comply with the statutory

requirements set forth in R.C. 2947.23(A)(1)(a), which provides1:

              (a) In all criminal cases, including violations of ordinances, the judge

       or magistrate shall include in the sentence the costs of prosecution,

       including any costs under section 2947.231 of the Revised Code, and

       render a judgment against the defendant for such costs. If the judge or


1
  R.C. 2947.23 has been amended four times since 2008, when Clay was sentenced.
However, the language of R.C. 2947.23(A)(1)(a) and (b) in effect in 2008 is identical to
the present language of R.C. 2947.23 (A)(1)(a)(i) and (ii).
                                                                                          -5-


       magistrate imposes a community control sanction or other nonresidential

       sanction, the judge or magistrate, when imposing the sanction, shall notify

       the defendant of both of the following:

              (i) If the defendant fails to pay that judgment or fails to timely make

       payments towards that judgment under a payment schedule approved by

       the court, the court may order the defendant to perform community service

       until the judgment is paid or until the court is satisfied that the defendant is

       in compliance with the approved payment schedule.

              (ii) If the court orders the defendant to perform the community

       service, the defendant will receive credit upon the judgment at the specified

       hourly credit rate per hour of community service performed, and each hour

       of community service performed will reduce the judgment by that amount.

       {¶ 8} We acknowledge that the record does not indicate that Clay was informed

at the time of sentencing that he could be ordered to perform community service if he fails

to pay the monetary portion of his sentence. But Clay did not raise this issue in his initial

appeal, or in any of his prior post-conviction motions or appeals.

       {¶ 9} The State argues that the doctrine of res judicata prevents this court from

considering an issue that Clay could have raised in the initial appeal from his conviction,

but did not raise at that time. Clay responds that a void judgment may be reviewed at

any time. “In State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, the

Supreme Court of Ohio held that ‘[a] sentence that does not include the statutorily

mandated term of postrelease control is void, is not precluded from appellate review by

principles of res judicata, and may be reviewed at any time, on direct appeal or by
                                                                                          -6-

collateral attack.’ Id. at paragraph one of the syllabus. The court also held, however, that

‘[a]lthough the doctrine of res judicata does not preclude review of a void sentence, res

judicata still applies to other aspects of the merits of a conviction, including the

determination of guilt and the lawful elements of the ensuing sentence.’ Id. at paragraph

three of the syllabus.” State v. Young, 2d Dist. Montgomery No. 25776, 2014-Ohio-2088,

¶ 9. In the case before us, Clay is challenging as void the portion of his sentence

imposing costs, as an “unlawful element” of his sentence. Therefore, the issue before us

is whether res judicata applies to the portion of the sentence that ordered him to pay

costs, without Clay’s having been informed of the possibility of community service in lieu

of paying costs during the period of post-release control.

       {¶ 10} “Pursuant to the doctrine of res judicata, a valid final judgment on the merits

bars all subsequent actions based on any claim arising out of the transaction or

occurrence that was the subject matter of the previous action.” State v. Collins, 2d Dist.

Montgomery No. 25612, 2013-Ohio-3645, ¶ 9, citing Grava v. Parkman Twp., 73 Ohio

St.3d 379, 653 N.E.2d 226 (1995). “Res judicata applies to any defense that was raised

or could have been raised in a criminal defendant's prior direct appeal from his conviction.

State v. Isa, 2d Dist. Champaign No. 2014-CA-31, 2015-Ohio-2876, ¶ 11, citing State v.

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

       {¶ 11} We have applied the doctrine of res judicata to the portion of a sentence

addressing costs and the lack of notice regarding community service in two recent

appeals. As in the case before us, in State v. Isa the defendant filed a post-conviction

motion years after his initial conviction was affirmed, seeking to vacate his sentence

based on the trial court’s failure to notify him that he may be ordered to do community
                                                                                             -7-


service as part of his post-release control. We held that the trial court’s failure to notify

the defendant of the possibility of community service should he fail to pay court costs did

not render that portion of the judgment void. Id. at ¶13. We relied on State v. Threatt, 108

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, paragraph 3 of the syllabus, which holds

that an appellate challenge to the trial court’s failure to provide the notice required by R.C.

2947.23(A)(1) must be asserted in a direct appeal after the sentencing entry is

journalized.

       {¶ 12} And in State v. Thompson, 2d Dist. Montgomery No. 26364, 2015-Ohio-

1984, we found a similar appeal lacked merit, even when the State conceded error based

on the trial court’s failure to comply with the mandate in R.C. 2947.23(A)(1) to notify the

defendant of the possibility of community service. We held that the doctrine of res judicata

bars the defendant from raising in a post-conviction motion an issue regarding the trial

court’s failure to notify when the defendant failed to raise that issue in his initial appeal.

       {¶ 13} Since Clay could have raised his argument regarding the trial court’s non-

compliance with R.C. 2947.23(A)(1) in his initial appeal, we conclude that Clay is barred

by the doctrine of res judicata from raising it in a post-conviction motion. Clay’s sole

assignment of error is overruled.



                                       IV. Conclusion

       {¶ 14} Clay’s sole assignment of error having been overruled, the order of the trial

court overruling Clay’s motion to vacate his sentence is Affirmed.

                                         ..........
                                           -8-


DONOVAN, P.J., and FROELICH, J., concur.



Copies mailed to:

Anthony E. Kendell
Janna L. Parker
James H. Clay
Hon. Christopher Gee
