[Cite as State v. Crum, 2017-Ohio-9000.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
SHANE CRUM : Case No. 2017CA00129
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 1996CR1057
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 11, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO SHANE CRUM, Pro Se
Prosecuting Attorney Inmate No. 334-540
RONALD MARK CALDWELL Marion Correctional Institution
Assistant Prosecuting Attorney P.O. Box 57
110 Central Plaza South, Suite 510 Marion, OH 43301
Canton, OH 44702-1413
Stark County, Case No. 2017CA00129 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Shane Crum, appeals the June 14, 2017 judgment
entry of the Court of Common Pleas of Stark County, Ohio, denying his motion filed
June 8, 2017. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On March 27, 1997, a jury convicted appellant of one count of rape in
violation of R.C. 2903.02, one count of felonious sexual penetration in violation of R.C.
2907.12, and one count of gross sexual imposition in violation of R.C. 2907.05. By
judgment entry filed March 31, 1997, the trial court sentenced appellant on each count,
to be served consecutively, culminating in an aggregate term of life in prison.
{¶ 3} Appellant appealed his conviction and sentence which this court affirmed
on October 26, 1998. State v. Crum, 5th Dist. Stark No. 97-CA-0134, 1998 WL 818055
(Oct. 26, 1998), appeal not accepted, 85 Ohio St.3d 1406, 706 N.E.2d 788. One of the
assignments of error raised the issue of allied offenses and merger under R.C. 2941.25.
{¶ 4} On February 19, 2004, appellant filed a petition to vacate or set aside
sentence pursuant to R.C. 2953.21, claiming newly discovered evidence in the form of
undisclosed witness statements. By judgment entry filed December 16, 2004, the trial
court denied the petition.
{¶ 5} Appellant appealed the denial which this court affirmed on December 27,
2005. State v. Crum, 5th Dist. Stark No. 2005CA00024, 2005-Ohio-7037, appeal not
accepted, 109 Ohio St.3d 1457, 2006-Ohio-2226, 847 N.E.2d 6.
{¶ 6} On June 8, 2017, appellant filed a motion to correct void sentence for the
court's failure to comport with the statutory requirements of R.C. 2941.25, claiming the
Stark County, Case No. 2017CA00129 3
trial court erred in failing to conduct a sentencing hearing on the merger issue. By
judgment entry filed June 14, 2017, the trial court denied the motion.
{¶ 7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 8} "THE TRIAL COURT ERRED IN SIMPLY DENYING THIS APPELLANT'S
MOTION WITHOUT ANY REASONED DECISION OR FINDINGS OF FACT AND
CONCLUSIONS OF LAW VIOLATING HIS CONSTITUTIONAL RIGHTS TO THE DUE
PROCESS OF LAW AND A FAIR TRIAL UNDER THE 5TH AND 14TH AMENDMENTS
OF THE US CONSTITUTION AND THE EQUIVALENT ARTICLES AND SECTIONS
OF THE OHIO CONSTITUTION."
II
{¶ 9} "THE TRIAL COURT INITIALLY ERRED BY IMPOSING CONSECUTIVE
SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT AND AS SUCH THE
SENTENCE IMPOSED IN THIS CASE DOES NOT COMPORT WITH THE
STATUTORY REQUIREMENTS OF O.R.C. 2941.25 SINCE THE STATE RELIED ON
THE SAME CONDUCT WITH THE SAME ALLEGED VICTIM ALL IN THE SAME TIME
FRAME TO SUPPORT ALL THE CHARGES AGAINST THIS APPELLANT. ANY
SENTENCE IMPOSED THAT IS NOT STATUTORILY COMPLIANT IS VOID AND
MUST BE VACATED OR CORRECTED OR THIS APPELLANT'S CONSTITUTIONAL
RIGHT TO THE DUE PROCESS OF LAW AND A FAIR TRIAL UNDER THE 5TH AND
14TH AMENDMENTS AND THE EQUIVALENT ARTICLES AND SECTIONS OF THE
OHIO CONSTITUTION ARE VIOLATED."
Stark County, Case No. 2017CA00129 4
III
{¶ 10} "THE TRIAL COURT ERRED IN NOT CONDUCTING A MERGER
HEARING AT SENTENCING OR WHEN THE ALLIED OFFENSE MOTION WAS
FILED AS THE FACIAL QUESTION OF MERGER IS PLAIN AND MUST BE
ADDRESSED TO ENSURE STATUTORY COMPLIANCE AND THE FAILURE TO DO
SO VIOLATED THIS APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 5TH
AND 14TH AMENDMENTS OF THE US CONSTITUTION AND THE EQUIVALENT
ARTICLES AND SECTIONS OF THE OHIO CONSTITUTION."
I, II, III
{¶ 11} In his three assignments of error, appellant claims the trial court erred in
denying his motion without any reasoned decision or findings of fact and conclusions of
law, challenges his consecutive sentences under R.C. 2941.25, and claims the trial
court erred in not conducting a merger hearing. We disagree.
{¶ 12} In his 1998 direct appeal at Assignment of Error IV, appellant challenged
the following:
AS THE EVIDENCE AT TRIAL RELIED UPON THE SAME
CONDUCT TO SUPPORT THE OFFENSES OF RAPE, GROSS SEXUAL
IMPOSITION, AND FELONIOUS SEXUAL PENETRATION AND THE
STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE
SEPARATE AMICUS FOR EACH CHARGE, MR. CRUM SHOULD NOT
BE CONVICTED AND SENTENCED FOR ALL SUCH OFFENSES
PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS TO
Stark County, Case No. 2017CA00129 5
THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 10 OF
THE OHIO STATE CONSTITUTION AND SECTION 2941.25 OF THE
OHIO REVISED CODE.
{¶ 13} In overruling the assignment, this court stated the following:
Upon review of the trial record, we find the evidence presented at
trial provides a basis for reasonable minds to conclude appellant engaged
in multiple acts which could be separately classified as felonious sexual
penetration, rape, and gross sexual imposition. These crimes are defined
in the jury instructions given by the trial court set forth supra. The trial
court instructed the jury to consider the charges and the evidence
supporting each charge separately. 3Tr. at 69. This court cannot
substitute our judgment for that of the jury.
State v. Crum, 5th Dist. Stark No. 97-CA-0134, 1998 WL 818055, *10 (Oct. 26, 1998).
{¶ 14} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 26, the
Supreme Court of Ohio stated the following:
Our decisions in Mosely [v. Echols, 62 Ohio St.3d 75, 578 N.E.2d
454 (1991)], Holdcroft [State v., 137 Ohio St.3d 526, 2013-Ohio-5014, 1
N.E.3d 382], and Rogers [State v., 143 Ohio St.3d 385, 2015-Ohio-2459,
Stark County, Case No. 2017CA00129 6
38 N.E.3d 860] establish that when a trial court finds that convictions are
not allied offenses of similar import, or when it fails to make any finding
regarding whether the offenses are allied, imposing a separate sentence
for each offense is not contrary to law and any error must be asserted in a
timely appeal or it will be barred by principles of res judicata. See
Holdcroft at ¶ 8-9.
{¶ 15} In the case sub judice, the trial court found the offenses were not allied
offenses and sentenced appellant to separate sentences. Appellant timely appealed
and assigned the issue as error. This court disagreed with appellant's arguments and
overruled the assignment. The Supreme Court of Ohio declined to accept the appeal
for review. State v. Crum, 85 Ohio St.3d 1406, 706 N.E.2d 788. As a result, appellant
is barred from relitigating the issue under the doctrine of res judicata. As stated by the
Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),
paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable to
petitions for postconviction relief. The Perry court explained the doctrine at 180-181 as
follows:
Under the doctrine of res judicata, a final judgment of conviction
bars the convicted defendant 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
Stark County, Case No. 2017CA00129 7
at the trial which resulted in that judgment of conviction or on an appeal
from that judgment.
{¶ 16} Although appellant argued in his June 8, 2017 motion that the motion was
not a petition for postconviction relief, "[w]here a criminal defendant, subsequent to his
or her direct appeal, files a motion seeking vacation or correction of his or her sentence
on the basis that his or her constitutional rights have been violated, such a motion is a
petition for postconviction relief as defined in R.C. 2953.21." State v. Reynolds, 79 Ohio
St.3d 158, 679 N.E.2d 1131, syllabus.
{¶ 17} In addition, appellant's filing did not meet the requirements of R.C.
2953.23(A)(1) as it was untimely under R.C. 2953.21(A)(2) and was a successive
petition.
{¶ 18} Upon review, we find the trial court did not err in summarily denying
appellant's "motion."
Stark County, Case No. 2017CA00129 8
{¶ 19} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Delaney, P.J. and
Baldwin, J. concur.
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