[Cite as State v. Davis, 2014-Ohio-3591.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100645
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIE DAVIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-08-514855-A
BEFORE: Keough, J., S. Gallagher, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 21, 2014
APPELLANT
Willie Davis
Inmate No. 563-213
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Willie Davis, appeals the trial court’s decision denying
his motion to correct his sentence. For the reasons that follow, we affirm.
{¶2} In March 2009, Davis pleaded guilty to two counts of rape and one count of
kidnapping with a sexual motivation specification. The court imposed the agreed
sentence of 25 years in prison with no possibility of early release. This court affirmed
Davis’s convictions on appeal. State v. Davis, 8th Dist. Cuyahoga No. 93856,
2010-Ohio-4488, appeal not allowed State v. Davis, 2011-Ohio-376, 940 N.E.2d 986.
{¶3} In September 2013, Davis filed a motion to correct his sentence, contending
that his rape and kidnapping convictions were allied offenses. The trial court denied his
motion, concluding that the doctrine of res judicata barred his collateral challenge.
Alternatively, the trial court found that the offenses were not allied because the offenses
involved separate victims. Davis appeals from this decision, raising two assignments of
error.
{¶4} In his first assignment of error, Davis contends that the trial court committed
plain error when it failed to conduct a hearing prior to sentencing to determine whether
Counts 1, 5, and 9 were allied offenses subject to merger. He maintains that this failure
rendered his sentence void in violation of R.C. 2941.25 and the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution.
{¶5} It is well established that res judicata bars the consideration of issues that
could have been raised on direct appeal. State v. Saxon, 109 Ohio St. 3d 176,
2006-Ohio-1245, 826 N.E.2d 824, ¶ 16-17; State v. Hough, 8th Dist. Cuyahoga Nos.
98480 and 98482, 2013-Ohio-1543, ¶ 29. This court has recognized that the issue of
whether two offenses constitute allied offenses subject to merger must be raised on direct
appeal from a conviction, or res judicata will bar a subsequent attempt to raise the issue.
State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13 (whether the verdicts
on all counts can be used to support separate convictions for all offenses charged is
decided by the trial court prior to its determination of a defendant’s sentence; the time to
challenge a conviction based on allied offenses is through a direct appeal.)
{¶6} In this case, Davis argued on direct appeal that he did not receive effective
assistance of counsel and that he was not competent to enter into a guilty plea. Davis
raised no issue regarding his sentence or whether the court erred in failing to consider
allied offenses prior to sentencing. Accordingly, his argument in this appeal with respect
to allied offenses is barred by the doctrine of res judicata because Davis could have raised
this issue in his direct appeal.
{¶7} Moreover, even considering the merits of his appeal, we find that any
argument that these offenses were allied is without merit because Counts 1, 5, and 9 relate
to separate victims. Convictions relating to different victims are not allied offenses.
State v. Dix, 8th Dist. Cuyahoga No. 94791, 2011-Ohio-472, ¶ 22; see also State v.
Kwambana, 12th Dist. Clermont No. CA2013-12-092, 2014-Ohio-2582, ¶ 11.
Accordingly, the court did not err in denying Davis’s motion to correct his sentence and
his assignment of error is overruled.
{¶8} In his second assignment of error, Davis contends that the trial court’s
October 29, 2013 journal entry denying his motion was not a final appealable order for
the purposes of R.C. 2505.02 that would give this court jurisdiction over this appeal
because (1) the trial court did not reach the merits of his motion, and (2) the journal entry
was not time-stamped or journalized.
{¶9} We find Davis’s assignment of error lacks merit. As explained above, the
trial court was correct in concluding that res judicata barred Davis’s collateral challenge.
Nevertheless, the trial court did reach the merits of Davis’s motion because it found that
Davis’s rape and kidnapping convictions involved separate victims; thus, the offenses
were not allied.
{¶10} Finally, a review of the certified record on appeal, including the docket,
shows that the trial court’s October 29, 2013 journal entry was filed and journalized with
the clerk of courts. Accordingly, Davis’s second assignment of error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR