[Cite as State v. Lester, 2012-Ohio-135.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 2-11-20

        v.

STEPHEN M. LESTER,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                            Trial Court No. 2006-CR-06

                                       Judgment Affirmed

                            Date of Decision: January 17, 2012




APPEARANCES:

        Stephen M. Lester, Appellant

        Edwin Pierce and Amy Otley-Beckett for Appellee
Case No. 2-11-20



ROGERS, J.

       {¶1} Defendant-Appellant, Stephen M. Lester (“Lester”), appeals the

judgment of the Court of Common Pleas of Auglaize County denying his “Motion

to Correct Status of Illegal Sentence” (“Motion to Correct”). On appeal, Lester

contends that the trial court erred in denying his Motion to Correct as his sentence

is unauthorized by law. Lester argues that his convictions for attempted felonious

assault and abduction are allied offenses, and because the trial court failed to

merge the sentences, his sentence is void. Finding that the trial court did not err as

the issue is an untimely motion for post-conviction relief and is barred by the

doctrine of res judicata, we affirm the judgment of the trial court.

       {¶2} In January 2006, the Auglaize County Grand Jury entered a five count

indictment against Lester. In May 2006, the matter proceeded to a jury trial during

which Lester was found guilty on: Count Two, abduction in violation of R.C.

2905.02(A)(1), a felony of the third degree; Count Three, theft in violation of R.C.

2913.02(A)(1), a felony of the fifth degree; Count Four, attempted felonious

assault in violation of R.C. 2923.02(A) and R.C. 2903.11(A)(1), a felony of the

third degree; and, Count Five, aggravated menacing in violation of R.C.

2903.21(A), a misdemeanor of the first degree. Thereafter, Lester was sentenced

in pertinent part to five years’ incarceration on Count Two and three years’

incarceration on Count Three, to be served concurrently.

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       {¶3} Lester appealed to this Court, and we affirmed in part and reversed in

part, based upon an inconsistency between the court’s oral notification at the

sentencing hearing and its written notification in its sentencing entry regarding

post-release control. State v. Lester, 3d Dist. No. 2-06-31, 2007-Ohio-4239. Due

to this inconsistency, we found that Lester’s sentences for his felony convictions

were void and remanded the case to the trial court for re-sentencing.

       {¶4} While this appeal was pending, Lester filed a petition for post-

conviction relief based upon allegations of ineffective assistance of counsel. The

trial court denied this petition as untimely filed, and this Court subsequently

affirmed that decision. State v. Lester, 3d Dist. No. 2-07-23, 2007-Ohio-5627,

appeal not accepted, 117 Ohio St.3d 1439, 2008-Ohio-1279, 883 N.E.2d 457.

       {¶5} On August 30, 2007, the trial court conducted a new sentencing

hearing and once again sentenced Lester to an aggregate prison term of eight

years. This re-sentencing was journalized on September 10, 2007. Lester also

appealed that decision to this Court, asserting that his resentencing was

inappropriate under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470. We affirmed. State v. Lester, 3d Dist. No. 2-07-34, 2008-Ohio-1148, appeal

not accepted, 119 Ohio St.3d 1413, 2008-Ohio-3880, 891 N.E.2d 771.

       {¶6} On April 1, 2008, Lester filed a second petition for post-conviction

relief, which the trial court denied.     Lester appealed this decision, and we

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affirmed. State v. Lester, 3d Dist. No. 2-08-24 (May 11, 2009), appeal not

accepted, 122 Ohio St.3d 1524, 2009-Ohio-4776, 913 N.E.2d 459. Thereafter, on

April 5, 2010, the trial court filed a nunc pro tunc entry to its re-sentencing entry

of September 2007, to correct an omission in the entry regarding Lester’s means of

conviction. Lester filed a notice of appeal of the nunc pro tunc entry, which this

Court dismissed because a nunc pro tunc is not an appealable judgment as it

applies retrospectively to the judgment it is meant to correct. State v. Lester, 3d

Dist. No. 2-10-20 (May 12, 2010). Lester filed a motion with this Court to certify

a conflict between our May 12, 2010 judgment and another judgment rendered by

the Sixth Appellate District. We agreed with Lester that a conflict existed and

certified the case to the Ohio Supreme Court. The Supreme Court affirmed our

judgment on appeal. State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958

N.E.2d 142.

       {¶7} In addition to appealing the trial court’s nunc pro tunc entry, Lester

filed a motion in the trial court on April 19, 2009, for a new sentencing hearing

and a final appealable order. In his memorandum in support of this motion, Lester

claimed that his 2007 re-sentence was void because the trial court failed to comply

with R.C. 2929.19(A)(1) by not informing him of the verdict of the jury. The trial

court overruled Lester’s motion on April 28, 2010. Lester appealed the decision




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Case No. 2-11-20



of the trial court, and we again affirmed the judgment of the trial court. State v.

Lester, 3d Dist. No. 2-10-23, 2010-Ohio-6066.

       {¶8} In December 2010, Lester filed a “Motion to Vacate Judgment of

Conviction” arguing that the offense of attempted felonious assault was not a

cognizable offense under Ohio law. The trial court denied the motion and Lester

filed an appeal. While this appeal was pending, Lester filed the Motion to Correct

in the instant matter, arguing that his sentence was illegal and void as the

attempted felonious assault conviction and abduction conviction are allied

offenses and the sentences should have merged. The trial court denied the motion.

It is from this judgment Lester appeals, assigning the following as error for our

review.

                            Assignment of Error No. I

       THE TRIAL COURT COMMITTED AN ERROR OF LAW
       WHEN IT DID NOT GRANT MR. LESTER’S “MOTION TO
       CORRECT STATUS OF ILLEGAL SENTENCE.”

       {¶9} In his sole assignment of error, Lester contends that his sentence is

unlawful and void as the trial court failed to merge the sentences for the attempted

felonious assault conviction and the abduction conviction. Lester argues that the

failure to merge allied offenses results in a void sentence according to State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, and is not subject




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to the doctrine of res judicata according to State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332.

       {¶10} We fail to reach the merits of Lester’s appeal as it is an untimely

motion for post-conviction relief and, alternatively, it is barred by the doctrine of

res judicata.

       {¶11} Revised Code 2953.21 prescribes the means for a defendant to obtain

post-conviction relief and provides in pertinent part:

       (A)(1)(a) Any person who has been convicted of a criminal
       offense or adjudicated a delinquent child 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. The petitioner may file a supporting affidavit and other
       documentary evidence in support of the claim for relief.

       ***

       (2) * * * a petition filed under division (A)(1) of this section shall
       be filed no later than one hundred eighty days after the date on
       which the trial transcript is filed in the court of appeals in the
       direct appeal of the judgment of conviction or adjudication * * *.
       If no appeal is taken, * * * the petition shall be filed no later than
       one hundred eighty days after the expiration of the time for
       filing an appeal. R.C. 2953.21(A)

       {¶12} Here, Lester’s Motion to Correct is properly construed as a petition

for post-conviction relief. State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-


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586, ¶ 11; State v. Turrentine, 3d Dist. No. 1-10-40, 2010-Ohio-4826, ¶ 5; State v.

Wyerick, 3d Dist. No. 10-07-23, 2008-Ohio-2257; State v. Gibson, 8th Dist. No.

96117, 2011-Ohio-3074, ¶ 35. Since the underlying motion and the appeal were

filed after the time for a direct appeal had passed, claim a denial of rights, and seek

to void the judgment of sentence, they constitute a petition for post-conviction

relief. Holdcroft, citing State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131

(1997). As his direct appeal was filed with this Court in 2006, the 180-day time

limit has passed and his motion for post-conviction relief is deemed untimely.

       {¶13} Furthermore, motions for post-conviction relief will be barred by the

doctrine of res judicata if they raise on appeal an issue that could have been raised

or was raised on direct appeal. State v. Wilson, 3d Dist. No. 1-08-60, 2009-Ohio-

1735, ¶ 15, citing Reynolds.

       “‘Under the doctrine of res judicata, a final judgment of
       conviction bars a convicted defendant who was represented by
       counsel 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 been raised by the
       defendant * * * on an appeal from that judgment.’” State v.
       Troglin, 3d Dist. No. 14-09-04, 2009-Ohio-5276, ¶ 13, quoting
       State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104
       (1967), paragraph nine of the syllabus. “[R]es judicata promotes
       the principles of finality and judicial economy by preventing
       endless relitigation of an issue on which a defendant has already
       received a full and fair opportunity to be heard.” State v.
       Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 18, 846 N.E.2d
       824, citing State ex rel. Willys-Overland Co. v. Clark, 112 Ohio St.


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       263, 268, 147 N.E. 33 (1925). State v. Schwieterman, 3d Dist. No.
       10-09-12, 2010-Ohio-102, ¶ 23.

       {¶14} It is the practice of this Court to hold that the issue of allied offenses

raised in post-conviction relief motions are barred by the doctrine of res judicata

as the proper time to raise it is on the direct appeal. State v. Harlow, 3d Dist. No.

14-04-23, 2005-Ohio-959, ¶ 7-12; State v. Wilhite, 3d Dist. No. 14-06-16, 2007-

Ohio-116, ¶ 16; Turrentine, 3d Dist. No. 1-10-40, 2010-Ohio-4826, ¶ 5. See

Wyerick, 3d Dist. No. 10-07-23, 2008-Ohio-2257 (holding that the issue of

ineffective assistance of counsel for failure to argue that sexual battery and

abduction were allied offenses of similar import was barred by res judicata as it

could have been raised on direct appeal). Other districts follow the same practice.

State v. Payton, 5th Dist. No. 2010CA00276, 2011-Ohio-4386, ¶ 23; State v.

Poole, 8th Dist. No. 94759, 2011-Ohio-716, ¶ 15; State v. Freeman, 11th Dist. No.

2010-T-0069, 2011-Ohio-2457; State v. Carter, 12th Dist. Nos. CA2010-07-012,

CA2010-08-016, 2011-Ohio-414, ¶ 11.

       {¶15} Accordingly we find that Lester’s appeal is an untimely motion for

post-conviction relief and is barred by the doctrine of res judicata. We overrule

Lester’s sole assignment of error.




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       {¶16} Having found no error prejudicial to the Appellant herein, in the

particular assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.




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