[Cite as State v. Evans, 2015-Ohio-3878.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102215
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
TERRY DAVE EVANS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-569495-A
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 24, 2015
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Ave.
Suite 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Scott Zarzycki
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Terry Dave Evans, appeals from a judgment of the trial
court that resentenced him to a prison term of 21 years upon a remand from this court in his
direct appeal. For the following reasons, we affirm the trial court’s judgment.
Background
{¶2} After a jury trial, Evans was convicted of two counts of felonious assault,
attempted murder, kidnapping, tampering with evidence, disrupting public services, and
possessing criminal tools. The trial court merged the two counts of felonious assault with the
attempted murder charge. The state elected to proceed under the attempted murder charge,
and the court imposed a prison term of 11 years for that count. The court also imposed six
years on the kidnapping, two years for tampering with evidence, one year for disrupting public
service, and one year on possessing criminal tools. The trial court ordered all terms to be
served consecutively, for a cumulative prison term of 21 years.
{¶3} On his direct appeal, Evans assigned two errors for this court’s review. He
claimed the trial court erred in failing to make a finding concerning his competency prior to
trial. This court rejected that claim, noting a hearing on the issue of competency was held by
the trial court, during which Evans’s counsel stipulated to the competency report, which had
found Evans competent.
{¶4} In his direct appeal, Evans also claimed the trial court erred in imposing
consecutive sentences without making the requisite statutory findings. This court agreed,
determining that the trial court did not make the necessary finding that consecutive sentences
were not disproportionate to the seriousness of the offender’s conduct and to the danger the
offender posed to the public. This court reversed his consecutive sentences and remanded the
case for the limited purpose of determining whether consecutive sentences were proper and, if
so, to make the required findings on the record. State v. Evans, 8th Dist. Cuyahoga No.
100382, 2014-Ohio-3229, ¶ 13.
{¶5} On remand, the trial court held a hearing resentencing Evans. The trial court
incorporated the findings made at the original sentencing hearing and made the additional
finding that consecutive sentences were not disproportionate to the seriousness of his conduct
and the danger he posed to the public. The court noted the brutal and horrific manner Evans
treated his victim — choking, stabbing, and pouring chlorine all over her. The court again
sentenced him to consecutive sentences totaling 21 years. Evans now appeals from his
resentencing.
{¶6} Evans assigns one error for our review. For the first time, he raises the issue of
merger of allied offenses. He claims the trial court erred in imposing separate sentences for
the allied offenses of attempted murder and kidnapping.
Res Judicata
{¶7} Res judicata bars Evans’s claim.
Under the doctrine of res judicata, a final judgment of conviction bars a convicted
defendant who was represented by counsel from raising and litigating in any
proceeding except an appeal from that judgment, any defense or any claimed lack
of due process that was raised or could have been raised by the defendant at trial,
which resulted in that judgment of conviction, or on an appeal from that
judgment.
State v. Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131 (1997), citing State v. Perry, 10
Ohio St.2d 175, 226 N.E.2d 104 (1967), syllabus.
{¶8} This court has consistently held that the proper time to raise the issue of allied
offenses is through the direct appeal. State v. Davis, 8th Dist. Cuyahoga No. 96908, 2012-
Ohio-1635; State v. Flagg, 8th Dist. Cuyahoga Nos. 95958 and 95986, 2011-Ohio-5386; State
v. Padgett, 8th Dist. Cuyahoga No. 95065, 2011-Ohio-1927; State v. Poole, 8th Dist. Cuyahoga
No. 94759, 2011-Ohio-716; State v. Ballou, 8th Dist. Cuyahoga No. 95733, 2011-Ohio-2925.
A defendant is required to raise the allied offenses issue on direct appeal, or else res judicata
bars a subsequent attempt to raise the issue. Davis; State v. Goldsmith, 8th Dist. Cuyahoga
No. 95073, 2011-Ohio-840; State v. Rodriquez, 8th Dist. Cuyahoga No. 95055, 2010-Ohio-
4902. Evans could have raised the allied-offenses issue in his direct appeal but did not. The
issue is now barred.
{¶9} We note, as an aside, that even if Evans had raised the allied-offense issue on his
direct appeal, his claim would not have been successful. A defendant’s failure to raise the
allied-offense issue at the time of sentencing forfeits all but plain error on appeal. State v.
Comen, 50 Ohio St.3d 206, 211, 553 N.E.2d 640 (1990). This principle of law was recently
affirmed by the Supreme of Ohio in State v. Rogers, Slip Opinion No. 2015-Ohio-2459. To
demonstrate plain error on direct appeal, the defendant would be required to demonstrate an
“obvious” error on the record and show that the error has affected substantial rights, i.e., affected
the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240
(2002). Evans made no attempt in his direct appeal to demonstrate that attempted murder and
kidnapping were allied offenses, and we note that, even though he raises the issue belatedly in
this appeal, he still has not made such a demonstration.
{¶10} Appellant’s sole assignment of error is overruled.
{¶11} Judgment affirmed.
It is ordered that appellee recover of 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. 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.
______________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR