Court of Appeals of Ohio, Twelfth District, Warren
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case
No. 05 CR 22106
P. Fornshell, Warren County Prosecuting Attorney, Kirsten A.
Brandt, for plaintiff-appellee
Scott, Jr., pro se
1} Defendant-appellant, James Scott, Jr., appeals
from the decision of the Warren County Court of Common Pleas
denying his motion to correct his allegedly void sentence
upon finding his request was barred by the doctrine of res
judicata. For the reasons outlined below, we affirm.
2} On February 25, 2005, the Warren County Grand
Jury returned a nine-count indictment charging Scott with
multiple counts of trafficking and possession of cocaine and
crack cocaine, four of which carried a major drug offender
specification. The matter ultimately proceeded to a two-day
jury trial. At trial, evidence was presented indicating local
law enforcement officers discovered multiple packages
containing over 1, 100 grams of cocaine and nearly 450 grams
of crack cocaine in Scott's home at the time of his
arrest. After the case was submitted to the jury for
deliberation, but prior to the jury returning its verdict,
Scott absconded. The jury then returned a verdict finding
Scott guilty of all nine charged offenses.
3} Over six years later, Scott was apprehended and
brought before the trial court for sentencing. At sentencing,
the trial court sentenced Scott to serve an aggregate 18-year
prison term, 12 of those years being mandatory. In imposing
that sentence, after merging counts six through eight, the
trial court ordered counts two through five, and count nine
to run concurrently to one another, with count one running
consecutive to all other counts. The trial court also ordered
Scott to pay mandatory fines totaling $27, 500, suspended
Scott's driver's license for a period of five years,
and notified Scott that he would be subject to a mandatory
five-year postrelease control term.
4} Scott then appealed. As part of his appeal, Scott
raised three assignments of error for review alleging he
received ineffective assistance of counsel, that the trial
court erred by denying his Crim.R. 29 motion for acquittal,
and that his sentence for count one exceeded the applicable
sentencing range for that offense in accordance with 2011
Am.Sub.H.B. No. 86. Finding no merit to any of Scott's
three assignments of error, this court affirmed Scott's
conviction and sentence in State v. Scott, 12th
Dist. Warren CA2012-06-052, 2013-Ohio-2866.
5} On August 2, 2017, over four years after this
court issued our decision affirming Scott's conviction
and sentence, Scott filed a motion requesting the trial court
correct his allegedly void sentence. In support of this
motion, Scott claimed the trial court erred by failing to
make the requisite findings pursuant to R.C. 2929.14(C)(4)
prior to imposing a consecutive sentence at his sentencing
hearing. The trial court denied Scott's motion upon
finding his request was barred by the doctrine of res
judicata. Scott now appeals from the trial court's
decision, raising the following single assignment of error
6} TRIAL COURT ERRED BY FAILING TO MAKE THE
REQUISITE STATUTORY FINDINGS PURSUANT TO O.R.C.
2929.14(C)(4), PRIOR TO IMPOSING CONSECUTIVE SENTENCING,
VIOLATING APPELLANT'S RIGHT OF DUE PROCESS OF LAW, AS
GUARANTEED BY THE 5TH AND 14TH AMENDMENT, UNITED STATES
CONSTITUTION; SECTION 16, ARTICLE 1, OHIO CONSTITUTION.
7} In his single assignment of error, Scott argues
the trial court erred by denying his motion to correct his
allegedly void sentence, which we construe as a petition for
postconviction relief; specifically, Scott argues the trial
court erred by failing to make the requisite findings
pursuant to R.C. 2929.14(C)(4) prior to imposing a
consecutive sentence at his sentencing hearing, thereby
rendering his sentence void. We disagree.
8} Contrary to Scott's claim otherwise,
"[t]he Ohio Supreme Court has declined to find sentences
void based on the court's failure to comply with certain
sentencing statutes, including the consecutive sentencing
statute." State v. Sanders, 9th Dist. Summit
No. 27189, 2014-Ohio-5115, ¶ 5, citing State v.
Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 8
(challenges to a sentencing court's judgment as to
whether sentences must be served concurrently or
consecutively must be presented in a timely direct appeal).
Therefore, because the failure to make the required statutory
findings before imposing consecutive sentences does not
render a sentence void, the principles of res judicata apply.
State v. Lindsey, 12th Dist. Fayette No.
CA2016-04-006, 2017-Ohio-331, ¶ 6.
9} Under the doctrine of res judicata, a defendant
cannot raise an issue in a postconviction petition if he or
she raised or could have raised the issue before the trial
court. State v. Jackson, 141 Ohio St.3d 171,
2014-Ohio-3707, ¶ 92. Thus, pursuant to the doctrine of
res judicata, "a defendant cannot raise an issue in a
motion for postconviction relief if he or she could have
raised the issue on direct appeal." State v.
Reynolds, 79 Ohio St.3d 158, 161 (1997). This applies to
claims alleging the trial court erred in imposing consecutive
sentences. See, e.g., State v. Chapin, 10th Dist.
Franklin No. 14AP-1003, 2015-Ohio-3013, ¶ 8-10
(appellant's motion for resentencing claiming the trial
court erred in imposing consecutive sentences was barred by
the doctrine of res judicata where appellant did not file a
direct appeal but a motion for resentencing after his time to
appeal had expired).
10} In light of the foregoing, we find no error in
the trial court's decision denying Scott's motion to
correct his allegedly void sentence, which, as noted above,
we construe as a petition for postconviction relief, as
Scott's claim alleging the trial court erred by failing
to make the requisite findings pursuant to R.C. 2929.14(C)(4)
prior to imposing a consecutive sentence at his sentencing
hearing is barred by the doctrine of res judicata. State
v. Wolfe, 5th Dist. Delaware No. 16CAA020008,
2016-Ohio-4616, ¶ 21-25 (res judicata applied to bar
appellant's motion to correct sentence alleging trial
court erred by imposing consecutive sentences where claim was
not raised in a direct appeal). "A petition for
postconviction relief is not a substitute for a direct appeal
nor a means of an additional or supplementary direct appeal
of a conviction and sentence." State v.
Russell, 8th Dist. Cuyahoga No. 103604, 2016-Ohio-1230,
¶ 11. Therefore, because we ...