[Cite as State v. Rice , 2012-Ohio-4084.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY STATE OF OHIO : : Appellate Case No. 2011-CA-74 Plaintiff-Appellee : : Trial Court Ca se No. 2009-CR-20 v. : : JAMIE L. RICE : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 7th da y of September, 2012.

. . . . . . . . . . . STEPHEN K. HALLER, Atty. Reg. #0009172, by NATHANIEL R. LUKEN, Atty. Reg. #0087864, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee JAMIE L. RICE, #A609174, Allen Correctional In stitution, C-Unit, 2338 North West Street, Lima, Ohio 45801 Attorney for Defendant-Appellant

. . . . . . . . . . . . . HALL, J. {¶ 1} Jamie Rice appeals pro se from the trial court’s dismissal of his “motion to 2

 vacate allied offenses and costs.” {¶ 2} Rice filed the foregoing motion in N ovember 2011, more than two years after his July 2009 conviction and sentence following a guilty plea to charges of rape, child endangering, and gross sexual imposition. In hi s motion, Rice asked the trial court “to vacate the allied offenses and various costs that were imposed against him in his plea and sentencing hearing * * *.” (Doc. #66 at 1). In support, Rice ar gued that rape, child endangering, and gross sexual imposition were allied offenses of similar import. He also challenged the trial court’s imposition of costs, asserting: (1) that court co sts should not have been imposed because he is indigent, (2) that his attorney provided ineffective assistance by not objecting to court costs, and (3) that “court costs” do not include “cost s of prosecution,” which have been included on the clerk’s cost bill. {¶ 3} The State moved to dismiss Rice’s moti on, arguing that it was, at best, an untimely petition for post-convicti on relief. (Doc. #69). The tria l court dismissed the motion on November 30, 2011, finding that it “no longer [h ad] jurisdiction to hear any motions in the form presented by the defendant.” The trial court added: “If the Defendant is trying to file a post-conviction relief pe tition, this motion does not comply with the criminal rules and Ohio Revised Code.” (Doc. #71). On December 27, 2011, Rice appealed from the trial court’s dismissal of his motion. {¶ 4} Before turning to Rice’s assignments of error, we pause to address the State’s claim that his appeal is untimely and that we lack jurisdiction over it. The State notes that Rice filed his notice of appeal more than two year s after his conviction. As a result, the State contends we lack jurisdiction under App.R. 4(A), which requires a notice of appeal to be filed 3

 within thirty days of the judgment being app ealed. The State adds that “[a]ny appeal by Appellant would be limited to the trial court’s decision with re gard to his Motion to Vacate Allied Offenses and Costs, however, neither of Appellant’s assignments of error discusses that decision.” {¶ 5} Although we agree with the State’s logi c, we do not agree that it deprives us of jurisdiction. Rice timely appealed from the tr ial court’s dismissal of his motion to vacate allied offenses and costs. Ther efore, we have jurisdiction ove r the appeal of that decision. Whether the issues he raises on appeal are related to the trial court’s dismissal entry is a separate, non-jurisdic tional question. If the issues Rice raises are unrelated to the trial court’s ruling on his motion, then his appeal may lack merit. But that would not affect our jurisdiction. Rice’s two a ssignments of error are: First Assignment of Error THE TRIAL COURT ERRED IN FAILING TO MERGE THE CONVICTIONS OF THE ALLIED OFFENSES OF SIMILAR IMPORT PURSUANT TO OHIO REVISED CODE SECTION 2941.25. Second Assignment of Error THE TRIAL COURT ERRED IN ASSESSING COSTS AGAINST THE APPELLANT THAT WERE NOT IMPOSED AT SENTENCING. {¶ 6} In his first assignment of error, Rice asserts that the tria l court should have granted his motion to merge his convictions b ecause they were allied offenses of similar import. This argument lacks merit for at least three reasons. First, Rice’s motion appears to be the functional equivale nt of a petition for post-convicti on relief. The motion was untimely 4

 because it was not filed within 180 days after the time for filing an appeal expired, and the conditions for extending that time were not satisfied. See R.C. 2953.21(A)(2) and R.C. 2953.23(A). Second, Rice could have ra ised his allied-offense argume nt in a direct appeal. Res judicata precludes him from doing so now. State v. Pound , 2d Dist. Montgomery Nos. 24789, 24980, 2012-Ohio-3392, ¶14 (“[W]hen an appellant does not raise the issue of merger in a timely direct appeal, the challenge is barred by the doctrine of res judicata.”). Third, Rice’s crimes were not allied offenses of similar import. The rape conviction involved inserting a device into a four-year-old ch ild’s anal cavity. The child-endangering conviction involved administering excessive corporal punishme nt. The gross sexual imposition conviction involved touching the child’s penis. (Doc. #29) . Because these offenses involved separate conduct and a separa te animus, merger was not required. See , generally , State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Accordingly, the first assignment of error is overruled. {¶ 7} In his second assignment of error, Rice claims court costs should not have been imposed because he is indigent. He also contends his trial couns el provided ineffective assistance by not objecting to court costs. Once again, res judicata precludes Rice from raising these issues, which could have been pursued on direct appeal. As for Rice’s claim that “court costs” differ from “costs of prosecution,” we disagree. Under R.C. 2947.23(A)(1), the trial court was required to order Rice to pay the “co sts of prosecution.” We note that “costs of prosecution” and “court costs” have been found to be synonymous. See State v. Christy , 3d Dist. Wyandot No. 16-04-04, 2004-Ohio-6963, ¶ 22 (“ Although the statute does not define the term ‘costs of prosecution,’ we conclude after review that the term means ‘court costs’ in a 5

 criminal case.”). {¶ 8} Finally, Rice challenges the adequacy and accuracy of a cost statement dated July 31, 2009. The statement includes separate cler k fees, sheriff fees, and steno fees totaling $477.89. 1 Because the statement was prepared the same day Rice’s final judgment entry was filed, he could have raised an y issues concerning the statem ent on direct appeal. He cannot properly raise those issues more than two year s later in an untimely motion to vacate. The second assignment of error is overruled. {¶ 9} The judgment of the Greene County Common Pleas Court is affirmed.

. . . . . . . . . . . . . GRADY, P.J., and DONOVAN, J., concur.

Copies mailed to: Stephen K. Haller Nathaniel R. Luken Jamie L. Rice Hon. Steven Wolaver

1 A copy of the statement is attached to Rice’s appellate brief as exhibit A-3. A similar statement in the same amount is include d in the record below.