[Cite as State v. Brooks , 2021-Ohio-2427.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. FREDERICK BROOKS Defendant-Appellant : : : : : : : : : : Appellate Case No. 29004

Trial Court Case No. 2009-CR-593 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 16th day of July, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 009921 8, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee FREDERICK BROOKS, Inmate No. A618-389, Pickaway Correctional In stitution, P.O. Box 209, Orient, Ohio 43143 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Frederick Brooks, appeals pro se from the judgment of the Montgomery County Court of Common Pleas denying his Motion to Correct Conviction. For the reasons outlined below, the judgment of th e trial court will be

affirmed.

Facts and Course of Proceedings {¶ 2} On November 20, 2009, a jury found Brooks guilty of one count o f aggravated robbery (deadly weapon) in violation of R.C. 2911.01(A)(1), one count of aggravated robbery (serious harm) in violation of R.C. 2911.01(A)(3), one count of felonious assault (serious harm) in violation of R.C. 2903.11(A)(1), one count of felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), and one count of ha ving weapons while under disability (prior drug conviction) in violation of R.C. 2923.13 (A)(3). Brooks was also found guilty of four firearm specifications that were attached to the aggravated robbery

and felonious assault counts. {¶ 3} At sentencing, the trial court imposed ten years in prison for each of the two aggravated robbery counts, eight years in prison for each of th e two felonious assault counts, and four years in prison for having weapons while under disability. The trial court ordered the sentences for aggravated robbery to run concurrentl y with each other and concurrently with one of the sentences for felonious assault an d the sentence for having weapons while under disability. T he second sentence for feloni ous assault was ordered to run consecutively to the other sentences. The trial court a lso imposed three years in prison for each of the four firearm specifications and ordered those sentences to run concurrently with each other and consecutively and prior to the definite term of-3- imprisonment, for a total sentence of 21 years. {¶ 4} Brooks appealed from his conviction. In support of his appeal, Brooks argued that his conviction was against the manifest weight of t he evidence because the evidence established that he committed the offenses in question while acting in selfdefense. Brooks also argued that the trial court erred by fail ing to merge the two counts of felonious assault as allied offenses of similar import. Up on review, we determined that Brooks’s conviction was not against the manifest weight of the evidence. We did, however, find that the felonious assault counts were allied off enses that should have been merged at sentencing. Therefore, we reversed Brooks’s sentence s for felonious assault and remanded the matter to the trial court for purposes of merg ing the felonious assault counts and resentencing Brooks accordingly. See State v. Brooks , 2d Dist. Montgomery No. 23784, 2010-Ohio-5886. {¶ 5} On December 22, 2010, the trial court resentenced Brooks. In d oing so, the trial court merged the felonious assault counts and their atten dant firearm specifications. Following the merger, the trial court once again imposed a tota l, aggregate sentence of 21 years in prison. {¶ 6} Over the next ten years, Brooks filed multiple pro se motions w ith the trial court, including a Motion to Correct Conviction 1 filed on November 18, 2020. In that motion, Brooks challenged his conviction for having weapons whi le under disability on grounds that it was based on a nonexistent felony drug convicti on. Brooks also briefly argued that his two counts of aggravated robbery were allied of fenses of similar import

1 The full caption of Brooks’s motion is titled “Motion to Corre ct a Conviction that was not in Accordance with Statutory Authority (Evidentiary Hearing Req uested) Conviction Contrary to Law.”-4- that the trial court should have merged at sentencing. On Dece mber 29, 2020, the trial court issued a decision denying Brooks’s motion on grounds that the claims asserted therein were barred by the doctrine of res judicata. Brooks no w appeals from that decision, raising two assignments of error for review.

First and Second As signments of Error {¶ 7} Under his first assignment of error, Brooks claims to be challe nging his sentence, but actually raises a sufficiency of the evidence arg ument concerning his conviction for having weapons wh ile under disability under R.C. 2923.13(A)(3). Specifically, Brooks argues that the State failed to establish that he had a prior felony drug conviction, which is required for a violation of R.C. 2923 .13(A)(3). Under his second assignment of error, Brooks contends that his two counts of agg ravated robbery were allied offenses of similar import that the trial court should h ave merged at sentencing. Upon review, we find that both of Brooks’s arguments are barred by the doctrine of res judicata. {¶ 8} “Under the doctrine of res judicata, a final judgment of convic tion 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 defend ant at the trial, which resulted in that judgment of conviction, or on an appeal from t hat judgment.” State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of t he syllabus. Therefore, “any issue that could have been raised on direct app eal,” but was not, is “not subject to review in subsequent proceedings.” State v. Saxon , 109 Ohio St.3d 176,-5- 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16, citing State v. Hutton , 100 Ohio St.3d 176, 2003- Ohio-5607, 797 N.E.2d 948, ¶ 37 and State v. D'Ambrosio , 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995). {¶ 9} Whether the evidence was sufficient to convict Brooks of having weapons while under disability is an issue that could have been raised during Brooks’s direct appeal. Brooks did not raise that issue on direct appeal; ther efore, his attempt to do so now is barred by the doctrine of res judicata. See State v. Florence , 2d Dist. Montgomery No. 28674, 2021-Ohio-867, ¶ 37; State v. Walls , 2d Dist. Miami No. 99-CA-9, 1999 WL 957825, *1 (Aug. 20, 1999). The same holds true for Brooks’s a llied offense claim. See

Florence at ¶ 35. We note that the Supreme Court of Ohio has held that “[t]he imposition of compound sentences for allied offenses is an error in the ex ercise of jurisdiction, to be challenged at sentencing and remedied on direct appeal .” (Emphasis added.) State v.

State ex rel. Romine v. McIntosh , 162 Ohio St.3d 501, 2020-Ohio-6826, 165 N.E.3d 1262, ¶ 15. Therefore, because Brooks did not raise the aggravated r obbery allied offense claim in his direct appeal, res judicata bars him from doing so now. {¶ 10} Because all of Brooks’s claims are barred by res judicata, his first and second assignments of error are overruled.

Conclusion {¶ 11} Having overruled both of Brooks’s assignments of error, the jud gment of the trial court denying Brooks’s Motion to Correct Conviction is af firmed.

. . . . . . . . . . . . . TUCKER, P.J. and EPLEY, J., concur.-6-

Copies sent to: Mathias H. Heck, Jr. J. Joshua Rizzo Frederick Brooks Hon. Mary Lynn Wiseman