[Cite as State v. McCoy, 2013-Ohio-5007.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. John W. Wise, J.
-vs- :
:
CHARLES MCCOY : Case No. 13-CA-63
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 04 CR 380
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 12, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT CHARLES MCCOY, Pros Se
20 South Second Street Inmate No. A488128
4th Floor Chillicothe Correctional Institute, F-1
Newark, OH 43055 P.O. Box 5500
Chillicothe, OH 45601
LIcking County, Case No. 13-CA-63 2
Farmer, J.
{¶1} On July 30, 2004, the Licking County Grand Jury indicted appellant,
Charles McCoy, on one count of aggravated robbery in violation of R.C. 2911.01(A)(1),
one count of attempted murder in violation of R.C. 2903.02, one count of felonious
assault in violation of R.C. 2903.11(A)(1), and two counts of kidnapping in violation of
R.C. 2905.01(B). Said charges arose from the robbery of a Dairy Queen involving two
employees and the beating and multiple stabbing of one of them.
{¶2} A bench trial commenced on February 7, 2005. The trial court found
appellant guilty of all counts. By judgment entry filed February 9, 2005, the trial court
sentenced appellant to an aggregate term of thirty years in prison.
{¶3} Appellant filed an appeal, assigning eleven errors for review, including a
challenge to his sentence on allied offenses (Assignment of Error VIII). Upon review,
this court affirmed appellant's convictions and sentence. State v. McCoy, 5th Dist.
Licking No. 05-CA-29, 2005-Ohio-56.
{¶4} On March 4, 2013, appellant filed a motion requesting corrective
sentencing in accordance with R.C. 2941.25. By judgment entry filed July 10, 2013, the
trial court denied the motion.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶6} "THE LICKING CO., OHIO COURT OF COMMON PLEAS ERRED BY
NOT COMPLYING WITH THE 1972 LEGISLATIVE MANDATES OF R.C. 2941.25,
UPON FILED MOTION REQUESTING SUCH."
LIcking County, Case No. 13-CA-63 3
II
{¶7} "THE LICKING CO., OHIO COURT OF COMMON PLEAS DIVISION
ERRED IN FINDING THAT ONE COUNT OF ATTEMPTED MURDER AND ONE
COUNT OF FELONIOUS ASSAULT, IN RE: TO THE VICTIM, T. MILLER, ARE NOT
ALLIED OFFENSES OF SIMILAR IMPORT, IN COMPLIANCE WITH R.C. 2941.25."
III
{¶8} "THE LICKING CO., OHIO COURT OF COMMON PLEAS DIVISION
ERRED IN FINDING THAT ONE COUNT OF AGGRAVATED ROBBERY AND TWO
COUNTS OF KIDNAPPING(S) ON THE VICTIM(S), T. MILLER, AND, H. BONIFANT,
ARE NOT ALLIED OFFENSES OF SIMILAR IMPORT, IN COMPLIANCE WITH R.C.
2941.25."
I, II, III
{¶9} Appellant claims the trial court erred in denying his motion requesting
corrective sentencing in accordance with R.C. 2941.25 as his sentence on "allied
offenses" was invalid and contrary to law. We disagree.
{¶10} In his March 4, 2013 motion requesting corrective sentencing in
accordance with R.C. 2941.25, appellant argued the trial court erred in sentencing him
to an aggregate term of thirty years in prison because the offenses were allied offenses
under R.C. 2941.25.
{¶11} In his original appeal, State v. McCoy, 5th Dist. Licking No. 05-CA-29,
2005-Ohio-56, appellant assigned the following error: "VII. THE TRIAL COURT ERRED
AND/OR ABUSED ITS DISCRETION IN FAILING TO FIND THAT COUNTS 1, 2, 3,
LIcking County, Case No. 13-CA-63 4
AND 4 ARE ALLIED OFFENSES OF SIMILAR IMPORT (R.C. 2941.25(A)) AND
SUBJECT APPELLANT TO ONE (1) CONVICTION."
{¶12} After review, this court at ¶ 114-117 concluded the following:
While appellant claims that the trial court erred in failing to find that
attempted murder and felonious assault are allied offenses of similar
import, we disagree.
In State v. Myers (Jan. 14, 2002), Perry App. No. 01CA5, 2002 WL
54753, this Court held as follows:
"We find the elements of attempted murder and felonious assault
do not meet the requirements of [State v.] Rance [(1999), 85 Ohio St.3d
632, 710 N.E.2d 699], supra, and so for this reason, the offenses are not
allied offenses of similar import. Likewise, we find felonious assault is not
a lesser included offense of attempted murder." Id. at 3. See also State v.
Morris, Guernsey App. No. 03 CA 29, 2004-Ohio-6988, 2004 WL
2955226.
Appellant further argues that the court erred in not finding that
kidnapping and aggravated robbery are allied offenses of similar import.
Aggravated robbery, in accordance with R.C. 2911.01(A)(1), requires
proof that defendant brandished a deadly weapon in order to facilitate the
theft offense whereas kidnapping, in accordance with R.C. 2905.01,
requires proof that appellant restrained Teresa Miller of her liberty or
removed her from the place where she was found. Each of the crimes
LIcking County, Case No. 13-CA-63 5
require[d] proof of an element not included in the other. Accordingly,
aggravated robbery and kidnapping are distinguishable because the
elements do not correspond to such a degree that the commission of one
will result in the commission of the other. State v. Dowdell, Cuyahoga
App. No. 83829, 2004-Ohio-5487. See also State v. Bunch, Mahoning
App. No. 02CA196, 2005-Ohio-3309 and State v. Spriggs (Aug. 28, 2001),
Delaware App. No. 00CA-A-037, 2001 WL 1000980, in which this court
noted that the appellant had conceded that the crimes of kidnapping and
aggravated robbery were not allied offenses of similar import.
{¶13} We find the arguments herein to be res judicata. Res judicata is defined
as "[a] valid, final judgment rendered upon the merits bars all subsequent actions based
upon any claim arising out of the transaction or occurrence that was the subject matter
of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379, 1995-Ohio-331,
syllabus. See also State v. Perry, 10 Ohio St.2d 175 (1967).
{¶14} In support of his argument, appellant cites this court to State v. Johnson,
128 Ohio St.3d 153, 2010-Ohio-6314, wherein the Supreme Court of Ohio recently
reviewed a two-step analysis for allied offenses. We note appellant is not entitled to the
benefit of any new case law after the disposition of his direct appeal. State v. Rhodes,
5th Dist. Licking App. No. 05CA98, 2006-Ohio-3996.
{¶15} Assignments of Error I, II, and III are denied.
LIcking County, Case No. 13-CA-63 6
{¶16} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. John W. Wise
SGF/sg 1031
[Cite as State v. McCoy, 2013-Ohio-5007.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
CHARLES MCCOY :
:
Defendant-Appellant : CASE NO. 13-CA-63
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. William B. Hoffman
_______________________________
Hon. John W. Wise
State v. McCoy
Combined Opinion