State v. Greathouse

[Cite as State v. Greathouse, 2012-Ohio-2414.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24935
vs. : T.C. CASE NO. 05CR852
TERRANCE L. GREATHOUSE : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
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OPINION
Rendered on the 1st day of June, 2012.
.........
Mathias H. Heck, Jr., Pros. Attorney; Michele D. Phipps, Asst. Pros. Attorney, Atty.
Reg. No. 0069829, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Terrance L. Greathouse, #516-781, R.C.I., P.O. Box 7010, Chillicothe, OH 45601
Defendant-Appellant, Pro Se
.........
GRADY, P.J.:
{¶ 1} In a prior appeal, State v. Greathouse, 2d Dist. Montgomery No. 21536,
2007-Ohio-2136, we affirmed Defendant-Appellant’s convictions for multiple felony
offenses, but we reversed the sentences the trial court imposed on the authority of State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E. 2d 470. We remanded the case for
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resentencing in accordance with Foster. Id., ¶ 91.
{¶ 2} The record of the present appeal does not reflect the result of the resentencing
we ordered. However, it is apparent that a resentencing occurred because, on October 28,
2011, Defendant filed a motion requesting another resentencing. Defendant argued that
several of his offenses are allied offenses of similar import and that his sentences for those
offenses must be merged pursuant to R.C. 2941.25.
{¶ 3} On November 17, 2011, the trial court overruled Defendant’s motion. The
court held that his merger claim is barred by res judicata because it was decided and rejected
by this court in Defendant’s prior direct appeal from his conviction. Defendant filed a timely
notice of appeal.
ASSIGNMENT OF ERROR:
{¶ 4} “THE APPELLANT IS ENTITLED TO RESENTENCING WHEN HIS
SENTENCE IS THE PRODUCT OF ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶ 5} Defendant doesn’t dispute the trial court’s finding that a claim of allied
offenses was raised and decided in his prior direct appeal. Rather, Defendant argues that
because the issue was resolved in that appeal on the authority of the test in State v. Rance, 85
Ohio St.3d 632, 710 N.E.2d 699 (1999), which was more recently overruled by State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, Defendant is entitled to
resentencing applying the test now prescribed by Johnson.
{¶ 6} We agree that Defendant’s allied offenses claim is barred by res judicata
because it was raised and decided in his prior appeal. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). The fact that the law governing that claim was subsequently changed by
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Johnson offers no basis for a different result. A new judicial ruling may be applied only to
cases that are pending on the announcement date, and the new judicial ruling may not be
applied retroactively to a conviction that has become final, that is, where the accused has
exhausted all of his appellate remedies. Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592,
819 N.E. 2d 687. Defendant exhausted his appellate remedies with respect to his convictions
in his prior direct appeal, which was decided in 2007. Johnson was decided in 2010.
Defendant is not entitled to the benefit of any new case law after the disposition of his direct
appeal. State v. Hill, 5th Dist. Muskinghum No. CT11-0020, 2011-Ohio-3644.
{¶ 7} The assignment of error is overruled. The judgment of the trial court will be
affirmed.
DONOVAN, J., And HALL, J., concur.
Copies mailed to:
Michelle D. Phipps, Esq.
Terrence L. Greathouse``
Hon. Mary Katherine Huffman