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State v. Collins

Court of Appeals of Ohio, Second District

August 23, 2013

STATE OF OHIO Plaintiff-Appellee
v.
ANTHONY COLLINS Defendant-Appellant

Criminal Appeal from Common Pleas Court, Trial Court Case No. 06-CR-3250

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. #0072135, Attorney for Defendant-Appellant

OPINION

FAIN, P.J.

(¶ 1} Defendant-appellant Anthony Collins appeals from an order overruling his post-conviction motion to merge his offenses for purposes of sentencing. Collins contends that the trial court committed plain error at the time of sentencing when it failed to merge his Rape and Child Endangering offenses.

(¶ 2} We conclude that this claim could have been raised on direct appeal, and is therefore barred by res judicata. Accordingly, the judgment of the trial court is Affirmed.

I. Course of the Proceedings

(¶ 3} In 2006, Collins was indicted on one count of Child Endangering, in violation of R.C. 2919.22(A). The indictment further alleged that Collins's conduct resulted in serious physical harm to the victim, pursuant to R.C. 2919.22(E)(2)(c). In 2007, Collins was indicted on one count of Rape of a child under the age of ten, in violation of R.C. 2907.02(A)(1)(b).

(¶ 4} Following a jury trial, Collins was found guilty of Child Endangering and Rape of a child under the age of ten. In July 2007, Collins was sentenced to life without parole on the Rape charge, and to five years on the Child Endangering charge, to be served consecutively to the Rape sentence. Collins appealed from his conviction and sentence. On May 30, 2008, we affirmed the conviction and sentence. State v. Collins, 2d Dist. Montgomery No. 22330, 2008-Ohio-2590.[1]

(¶ 5} Four years later, in August 2012, Collins filed a Motion for Merger, contending that the trial court committed plain error at the time of sentencing by failing to merge his Rape and Child Endangering offenses. According to Collins, the test set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, mandates a finding that his Rape and Child Endangering offenses are allied offenses of similar import pursuant to R.C. 2941.25.

(¶ 6} The State opposed Collins's motion for merger, contending that the merger claim was barred by res judicata and that the Johnson decision could not be applied retroactively to Collins's conviction. The State further contended that Collins's Rape and Child Endangering crimes are not allied offenses of similar import

(¶ 7} The trial court overruled Collins's motion for merger, finding that Collins's two offenses were not committed with the same, single act, and, therefore, not subject to merger. From this order, Collins appeals.

II. Collins's Merger Argument Is Barred by Res Judicata

(¶ 8} Collins's sole assignment of error ...


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