[Cite as State v. Stewart, 2012-Ohio-3758.]
                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                     WASHINGTON COUNTY


STATE OF OHIO,                                          :

        Plaintiff-Appellee,                             :   Case No. 11CA26

        vs.                                             :

LAWRENCE E. STEWART,                                    :   DECISION AND JUDGMENT ENTRY


        Defendant-Appellant.                            :

_________________________________________________________________

                                               APPEARANCES:

COUNSEL FOR APPELLANT:                        Lawrence E. Stewart #A328-065, Hocking County
                                              Correctional Facility, 16759 Snake Hollow Road, P.O. Box
                                              59, Nelsonville, Ohio 45764-0059, Pro Se

COUNSEL FOR APPELLEE:         James E. Schneider, Washington County Prosecuting
                              Attorney, and Alison L. Cauthorn, Washington County
                              Assistant Prosecuting Attorney, 205 Putnam Street,
                              Marietta, Ohio 45750
_______________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:8-10-12
ABELE, P.J.

        {¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that

overruled a motion to terminate void sentences filed by Lawrence E. Stewart, defendant below

and appellant herein.

        {¶ 2} Appellant assigns the following error for review:

                 “THE DEFENDANT/APPELLANT, LAWRENCE E. STEWART
                 WAS DENIED HIS CONSTITUTIONAL PROTECTION OF
                 ‘EQUAL PROTECTION’ OF LAWS AS GUARANTEED BY
                 THE FOURTEENTH AMENDMENT OF THE UNITED
WASHINGTON, 11CA26                                                                                2

               STATES CONSTITUTION, OHIO BILL OF RIGHTS: ARTICLE
               I, §§2 OHIO CONSTITUTION. THE HONORABLE JUDGE
               EDWARD LANE (ED LANE) WASHINGTON COUNTY
               COMMON PLEASE COURT DENIED THE APPELLANT IN
               THIS APPLICATION THE EQUAL PROTECTION OF OHIO
               REVISED CODE §5145.01 DURATION OF SENTENCE
               MANDATING APPELLANT’S CONSECUTIVE SENTENCES
               BE IMPOSED AS CONCURRENT TERMS OF
               INCARCERATION, AND NOT THE CONSECUTIVE
               SENTENCES THAT HAS [sic] BEEN IMPOSED.” (Emphasis
               omitted.)

       {¶ 3} In 1996 appellant was convicted of: (1) kidnapping in violation of R.C.

2905.01(A)(4); (2) gross sexual imposition in violation of R.C. 2907.05(A)(i); and (3) attempted

rape in violation of R.C. 2923.02(A) & R.C. 2907.02(A)(2). Appellant received a ten to

twenty-five year sentence for kidnapping, with ten years actual prison time; three to five years for

gross sexual imposition; and four to fifteen years for attempted rape. The two sentences for gross

sexual imposition and attempted rape were ordered to be served concurrently with each other, but

consecutive to the kidnapping sentence. Thus, in aggregate, appellant was ordered to be

imprisoned for fourteen to forty years, with ten years actual incarceration.

       {¶ 4} We affirmed appellant's conviction in State v. Stewart (Dec. 15, 1997),

Washington App. No. 96CA18 (Stewart I). The Ohio Supreme Court denied further review.

State v. Stewart (1999), 87 Ohio St.3d 1430, 718 N.E.2d 447. In 2002, appellant filed a motion

for re-sentencing and new trial. The trial court overruled the motions and we affirmed that

decision. State v. Stewart, Washington App. No. 02CA29, 2003- Ohio-4850 (Stewart II).

       {¶ 5} Appellant commenced the instant case on September 22, 2011 with a motion to

terminate a “void and/or voidable sentence.”      The gist of appellant’s motion appears to be that

recent statutory changes and judicial rulings have rendered unconstitutional his consecutive
WASHINGTON, 11CA26                                                                                   3

sentences. On September 14, 2011, the trial court overruled appellant's motion and pointed out

that appellant's sentences were valid at the time of imposition. This appeal followed.

       {¶ 6} Appellant’s assignment of error appears to argue that the trial court’s ruling on his

motion constitutes error and a violation of his constitutional rights. We disagree with appellant.



       {¶ 7} Our analysis begins with the observation that appellant’s arguments appear to be

premised on events that occurred subsequent to the changes that Am.Sub.S.B. No. 2, 146 Ohio

Laws, Part IV, 7136 (S.B. No. 2) made in Ohio Felony Sentencing Law. Thus, neither S.B. No.

2, nor any subsequent judicial decisions or statutory changes that relate to S.B. No. 2, are

applicable to appellant. Appellant was originally sentenced on April 12, 1996. S.B. No. 2

became effective on July 1, 1996. State v. Stevens, Butler App. No. CA2010–08–211,

2011-Ohio-2595, at ¶10; State v. Gibson, Washington App. No. 01CA19, 2002-Ohio-5232, at

¶30. As many courts held soon after the passage of S.B. No. 2, those new provisions applied

prospectively and did not apply to the sentencing of defendants that occurred before the statute's

effective date. See, e.g., State v. Dukes (Dec. 9, 1998), Cuyahoga App. No. 71397; State v.

Elder (May 11, 1998), Butler App. No. CA97-07-142; State v. Jenkins (Feb. 11, 1997), Lawrence

App. No. No. 96CA40. On this basis alone, we find no merit to appellant’s argument.

       {¶ 8} Appellant also argues that the trial court failed to apply R.C. 5145.01 which, he

contends, requires concurrent sentences. First, as we note above, if appellant cites legislative

changes enacted as part of S.B. No. 2, those changes do not apply to him. Second, if appellant is

arguing that the trial court failed to comply with the statute in existence at the time he was

sentenced, this is an issue that should have been raised on appeal in Stewart I. To the extent that
WASHINGTON, 11CA26                                                                                     4

it was not, the doctrine of res judicata is dispositive of the issue. See State v. Pickett, Summit

App. No. 25931, 2012-Ohio-1821. at ¶10; State v. Yates, Montgomery App. No. 24823,

2012-Ohio-1781, at ¶24; State v. Beach, Gallia App. No. 11CA4, 2012-Ohio-1630, at ¶5. Either

way, appellant’s arguments under R.C. 5145.01 have no merit.

       {¶ 9} Appellant also argues that he has “a claim that has not been addressed by this

Court and is a claim under un-charted territory therefore” - that the trial court violated his Equal

Protection rights under the Ohio and United States Constitutions by failing to sufficiently explain

that R.C. 5145.01 did not apply to him.

       {¶ 10} First, as we note above, subsequent changes in R.C. 5145.01 are not applicable to

appellant. Second, any violation of a provision that existed at the time of his sentencing should

have been raised in appellant's direct appeal (Stewart I), but were not. Thus, the doctrine of res

judicata again applies and resolves the issue. Third, and more important, criminal defendants

are not a “suspect class” for purposes of the Fourteenth Amendment. See e.g. United States v.

Rosales-Garay (U.S.C.A. 10 2002), 283 F.3d 1200, 1203, at fn. 4; United States v. Carroll

(U.S.C.A.7 1997), 110 F.3d 457, 461; United States v. Smith (U.S.C.A.9 1987), 818 F.2d 687,

691. Appellant also cites no case law to support the view that re-sentencing conducted under

later versions of a statute is a fundamental right.

       {¶ 11} Laws that burden neither a suspect class, nor impinge a fundamental right, will be

upheld if the law bears a rational relation to a legitimate end. See e.g. United States v. Castillo

(U.S.C.A.10 1998), 140 F.3d 874,883; Carroll, supra at 461. Here, appellant has not persuaded

us that any Fourteenth Amendment “equal protection” violation has occurred.

       {¶ 12} Accordingly, based on the foregoing reasons we hereby overrule appellant's
WASHINGTON, 11CA26                                                                               5

assignment of error and affirm the trial court's judgment.

                                                              JUDGMENT AFFIRMED.

                                      JUDGMENT ENTRY

       It is ordered that the judgment be affirmed and that appellee recover of appellant the costs

herein taxed.

       The Court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this Court directing the Washington

County Common Pleas Court to carry this judgment into execution.

       A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

       Kline, J. & McFarland, J.: Concur in Judgment & Opinion

                                                              For the Court




                                                              BY:
                                            Peter B. Abele
                                            Presiding Judge




                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
WASHINGTON, 11CA26                                                                 6

time period for further appeal commences from the date of filing with the clerk.
