[Cite as State v. Scott, 2018-Ohio-2361.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 - vs - 

JAMES SCOTT, JR., 

 Defendant-Appellant. 

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CASE NO. CA2017-10-152 

O P I N I O N 

6/18/2018 

 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 05 CR 22106 

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice 

Drive, Lebanon, OH 45036, for plaintiff-appellee 

James Scott, Jr., #A665564, London Correctional Institution, 1580 State Route 56 SW, 

London, Ohio 43140, pro se 

 S. POWELL, P.J.

{¶ 1} Defendant-appellant, James Scott, Jr., appeals from the decision of the 

Warren County Court of Common Pleas denying his motion to correct his allegedly void 

sentence upon finding his request was barred by the doctrine of res judicata. For the 

reasons outlined below, we affirm. 

{¶ 2} On February 25, 2005, the Warren County Grand Jury returned a nine-count 
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indictment charging Scott with multiple counts of trafficking and possession of cocaine and 

crack cocaine, four of which carried a major drug offender specification. The matter 

ultimately proceeded to a two-day jury trial. At trial, evidence was presented indicating local 

law enforcement officers discovered multiple packages containing over 1,100 grams of 

cocaine and nearly 450 grams of crack cocaine in Scott's home at the time of his arrest. 

After the case was submitted to the jury for deliberation, but prior to the jury returning its 

verdict, Scott absconded. The jury then returned a verdict finding Scott guilty of all nine 

charged offenses. 

{¶ 3} Over six years later, Scott was apprehended and brought before the trial court 

for sentencing. At sentencing, the trial court sentenced Scott to serve an aggregate 18-

year prison term, 12 of those years being mandatory. In imposing that sentence, after 

merging counts six through eight, the trial court ordered counts two through five, and count 

nine to run concurrently to one another, with count one running consecutive to all other 

counts. The trial court also ordered Scott to pay mandatory fines totaling $27,500, 

suspended Scott's driver's license for a period of five years, and notified Scott that he would 

be subject to a mandatory five-year postrelease control term. 

{¶ 4} Scott then appealed. As part of his appeal, Scott raised three assignments of 

error for review alleging he received ineffective assistance of counsel, that the trial court 

erred by denying his Crim.R. 29 motion for acquittal, and that his sentence for count one 

exceeded the applicable sentencing range for that offense in accordance with 2011 

Am.Sub.H.B. No. 86. Finding no merit to any of Scott's three assignments of error, this 

court affirmed Scott's conviction and sentence in State v. Scott, 12th Dist. Warren CA2012-

06-052, 2013-Ohio-2866. 

{¶ 5} On August 2, 2017, over four years after this court issued our decision 

affirming Scott's conviction and sentence, Scott filed a motion requesting the trial court 
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correct his allegedly void sentence. In support of this motion, Scott claimed the trial court 

erred by failing to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to 

imposing a consecutive sentence at his sentencing hearing. The trial court denied Scott's 

motion upon finding his request was barred by the doctrine of res judicata. Scott now 

appeals from the trial court's decision, raising the following single assignment of error for 

review. 

{¶ 6} TRIAL COURT ERRED BY FAILING TO MAKE THE REQUISITE 

STATUTORY FINDINGS PURSUANT TO O.R.C. 2929.14(C)(4), PRIOR TO IMPOSING 

CONSECUTIVE SENTENCING, VIOLATING APPELLANT'S RIGHT OF DUE PROCESS 

OF LAW, AS GUARANTEED BY THE 5TH AND 14TH AMENDMENT, UNITED STATES 

CONSTITUTION; SECTION 16, ARTICLE 1, OHIO CONSTITUTION. 

{¶ 7} In his single assignment of error, Scott argues the trial court erred by denying 

his motion to correct his allegedly void sentence, which we construe as a petition for 

postconviction relief; specifically, Scott argues the trial court erred by failing to make the 

requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing a consecutive sentence 

at his sentencing hearing, thereby rendering his sentence void.1 We disagree. 

{¶ 8} Contrary to Scott's claim otherwise, "[t]he Ohio Supreme Court has declined 

to find sentences void based on the court's failure to comply with certain sentencing 

statutes, including the consecutive sentencing statute." State v. Sanders, 9th Dist. Summit 

No. 27189, 2014-Ohio-5115, ¶ 5, citing State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio5014, ¶ 8 (challenges to a sentencing court's judgment as to whether sentences must be 

served concurrently or consecutively must be presented in a timely direct appeal). 

 

1. Construing Scott's motion to correct his allegedly void sentence as a petition for postconviction relief, we 

note that such motion was filed well outside the time requirements found in R.C. 2953.21(A)(2). For purposes 

of this appeal, however, we will assume Scott's motion was timely filed. 
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Therefore, because the failure to make the required statutory findings before imposing 

consecutive sentences does not render a sentence void, the principles of res judicata apply. 

State v. Lindsey, 12th Dist. Fayette No. CA2016-04-006, 2017-Ohio-331, ¶ 6. 

{¶ 9} Under the doctrine of res judicata, a defendant cannot raise an issue in a 

postconviction petition if he or she raised or could have raised the issue before the trial 

court. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, ¶ 92. Thus, pursuant to the 

doctrine of res judicata, "a defendant cannot raise an issue in a motion for postconviction 

relief if he or she could have raised the issue on direct appeal." State v. Reynolds, 79 Ohio 

St.3d 158, 161 (1997). This applies to claims alleging the trial court erred in imposing 

consecutive sentences. See, e.g., State v. Chapin, 10th Dist. Franklin No. 14AP-1003, 

2015-Ohio-3013, ¶ 8-10 (appellant's motion for resentencing claiming the trial court erred 

in imposing consecutive sentences was barred by the doctrine of res judicata where 

appellant did not file a direct appeal but a motion for resentencing after his time to appeal 

had expired). 

{¶ 10} In light of the foregoing, we find no error in the trial court's decision denying 

Scott's motion to correct his allegedly void sentence, which, as noted above, we construe 

as a petition for postconviction relief, as Scott's claim alleging the trial court erred by failing 

to make the requisite findings pursuant to R.C. 2929.14(C)(4) prior to imposing a 

consecutive sentence at his sentencing hearing is barred by the doctrine of res judicata. 

State v. Wolfe, 5th Dist. Delaware No. 16CAA020008, 2016-Ohio-4616, ¶ 21-25 (res 

judicata applied to bar appellant's motion to correct sentence alleging trial court erred by 

imposing consecutive sentences where claim was not raised in a direct appeal). "A petition 

for postconviction relief is not a substitute for a direct appeal nor a means of an additional 

or supplementary direct appeal of a conviction and sentence." State v. Russell, 8th Dist. 

Cuyahoga No. 103604, 2016-Ohio-1230, ¶ 11. Therefore, because we find no error in the 
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trial court's decision denying Scott's motion to correct his allegedly void sentence upon 

finding his request was barred by the doctrine of res judicata, Scott's single assignment of 

error is without merit and overruled. 

{¶ 11} Judgment affirmed. 

 RINGLAND and HENDRICKSON, JJ., concur.