[Cite as State v. Stout, 2019-Ohio-2210.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 18CA66 

 : 

DEVON R. STOUT : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Court 

of Common Pleas, Case No. 2009 CR 

869 H 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: June 4, 2019 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

GARY BISHOP DAVID M. WATSON 

RICHLAND CO. PROSECUTOR 3 North Main St., Suite 702 

JOSEPH C. SNYDER Mansfield, OH 44902 

38 South Park St. 

Mansfield, OH 44902 

 
Richland County, Case No. 18CA66 2 

Delaney, J. 

{¶1} Appellant Devon R. Stout appeals from the July 24, 2018 judgment entry of 

the Richland County Court of Common Pleas. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This case arose in 2009 when appellant was charged by indictment with 

two counts of felonious assault and four counts of child endangering. 

{¶3} We note the facts of the underlying offenses are not specified in the record 

and are not stated by either party. The trial court record includes a brief police report 

indicating the investigation was launched at Nationwide Children’s Hospital when 

appellant’s infant son was found to have several broken bones. 

{¶4} On March 18, 2010, appellant entered pleas of guilty to one count of 

felonious assault and one count of child endangering, both felonies of the second degree. 

The remaining counts were dismissed. 

{¶5} Appellee recommended a prison term of four years upon Count I, felonious 

assault, and a community-control term of 3 years upon Count III, child endangering, “upon 

release in count one.” Admission of Guilt/Judgment Entry, March 18, 2010. 

{¶6} The matter proceeded to sentencing on April 21, 2010, and the trial court 

sentenced appellant to a prison term of four years each upon Counts I and III, although 

the prison term upon Count III was suspended. A notation states the counts are to be 

served “consecutively to each other and to 07-CR-529 & 07-CR-978.” The sentence 

further states appellant is sentenced to a four-year term of community control upon Count 

III. 
Richland County, Case No. 18CA66 3 

{¶7} On December 6, 2011, appellant filed a motion for judicial release in the 

instant case. Appellee responded with a motion in opposition arguing that appellant was 

caught breaking into vacant houses in 2007 and was charged with one count of breaking 

and entering in case number 07-CR-529 H. While that case was pending, appellant was 

caught breaking into another house. The second case was 07-CR-978 H. He received 

a suspended sentence and was placed on community control, but then committed the 

offenses in the instant case, which arose from his physical abuse of his infant son. 

Appellee stated in pertinent part: 

 * * * *. 

 [Appellant] had been given the opportunity to participate in the 

Crossroads Center for Change program and was on intensive 

supervision probation when he began physically abusing his infant 

son in late 2009 [the instant case]. For this he received his current 

split sentence of 4-years prison followed by 4-years of community 

control supervision. He also has 3-years of post-release control to 

complete upon his scheduled release. 

 * * * *. 

{¶8} The trial court overruled appellant’s motion for judicial release on January 

12, 2012. 

{¶9} On November 19, 2011, appellant filed a pro se motion for jail time credit. 

Appellee filed a written response indicating no objection thereto. The trial court overruled 

appellant’s motion on December 9, 2014, finding appellant had already been credited for 

the time requested. 
Richland County, Case No. 18CA66 4 

{¶10} On April 19, 2018, a notice of probation violation was filed. A hearing was 

scheduled for April 24, 2018. The hearing date was continued several times due to 

appellant’s health issues. 

{¶11} The hearing proceeded on July 23, 2018 and appellant admitted to several 

violations of community-control conditions. The trial court found appellant guilty and 

sentenced him to a prison term of two years upon Count III. 

{¶12} Appellant now appeals from the trial court’s Community Control Violation 

Journal Entry of July 24, 2018. 

{¶13} Appellant raises two assignments of error: 

ASSIGNMENTS OF ERROR 

{¶14} “I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED 

SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME 

CONDUCT, WERE NOT COMMITTED SEPARATELY OR WITH A SEPARATE 

ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES 

PURSUANT TO R.C. 2941.25.” 

{¶15} “II. THE TRIAL COURT COMMITTED ERROR IN SENTENCING 

APPELLANT TO PRISON ON ONE CHARGE AND TO COMMUNITY CONTROL ON 

THE OTHER CHARGE BECAUSE THE COMMUNITY CONTROL WAS A LONGER 

SENTENCE THAN THE PRISON SENTENCE, IN VIOLATION OF R.C. 2929.15.” 

ANALYSIS 

I.

{¶16} In his first assignment of error, appellant argues the trial court should have 

merged the offenses of felonious assault and child endangering for purposes of 
Richland County, Case No. 18CA66 5 

sentencing. Appellee argues that appellant’s allied-offenses argument is barred by res 

judicata, and we agree. 

{¶17} Appellant ostensibly appeals from the probation-violation judgment entry 

imposing the suspended prison term, but challenges his original sentence. We note 

appellant failed to file a direct appeal of his conviction and sentence. 

{¶18} Appellant argues his convictions should have merged for purposes of 

sentencing. A defendant may be indicted upon and tried for allied offenses of similar 

import, but may be sentenced on only one of the allied offenses. State v. Carr, 2016-Ohio9, 57 N.E.3d 262, ¶ 42 (5th Dist.), citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio4569, 895 N.E.2d 149, ¶ 42. R.C. 2941.25 states as follows: 

(A) Where the same conduct by defendant can be construed 

to constitute two or more allied offenses of similar import, the 

indictment or information may contain counts for all such offenses, 

but the defendant may be convicted of only one. 

(B) Where the defendant's conduct constitutes two or more 

offenses of dissimilar import, or where his conduct results in two or 

more offenses of the same or similar kind committed separately or 

with a separate animus as to each, the indictment or information may 

contain counts for all such offenses, and the defendant may be 

convicted of all of them. 

{¶19} The question of whether offenses merge for sentencing depends upon the 

subjective facts of the case in addition to the elements of the offenses charged. State v. 
Richland County, Case No. 18CA66 6 

Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 21. 

Appellant’s summary argument in the instant case points to no subjective facts. 

{¶20} Appellate review of an allied-offense question is de novo. State v. Miku, 

2018-Ohio-1584, 111 N.E.3d 558, ¶ 70 (5th Dist.), citing State v. Williams, 134 Ohio St.3d 

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12. In the instant case, there was no alliedoffense determination at the original sentencing and we have no facts before us for 

review. 

{¶21} Appellee argues appellant’s arguments in the instant case are barred by res 

judicata. “Under the doctrine of res judicata, a final judgment of conviction bars the 

defendant from raising and litigating in any proceeding, except an appeal from that 

judgment, any defense or any claimed lack of due process that the defendant raised or 

could have raised at the trial which resulted in that judgment of conviction or on appeal 

from that judgment.” State v. Snyder, 5th Dist. Tuscarawas No.2015AP070043, 2016–

Ohio–832, ¶ 26 quoting State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). 

{¶22} In the instant case, at the original sentencing hearing and in the sentencing 

entry, the trial court was silent as to any finding regarding allied offenses. Accordingly, we 

hold appellant's present challenge to his sentencing based on an allied-offense theory 

could have been raised as part of his direct appeal, and thus the present claim is barred 

by res judicata. See, State v. Duplert, 5th Dist. Muskingum No. CT2018-0068, 2019-

Ohio-1662, ¶ 14, citing State v. Franklin, 5th Dist. Stark No. 2017 CA 00170, 2018-Ohio2904, appeal not allowed, 154 Ohio St.3d 1423, 2018-Ohio-4496, 111 N.E.3d 21; State 

v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234; State ex rel. Cowan v. 

Gallagher, 153 Ohio St.3d 13, 2018-Ohio-1463, 100 N.E.3d 407. 
Richland County, Case No. 18CA66 7 

{¶23} Moreover, as mentioned infra, the facts of the underlying offenses are not 

contained in the record so appellant’s argument that Counts I and III should merge is not 

supported by any evidence whatsoever. Appellant points to nothing in the record 

indicating Counts I and III arose from the same conduct. 

{¶24} Appellant’s first assignment of error is overruled. 

II. 

{¶25} In his second assignment of error, appellant argues the trial court erred in 

imposing a “split sentence” which ordered him to be placed on community control upon 

his release from prison. We disagree. 

{¶26} We have approved sentences in which a trial court imposes community 

control consecutive to a prison term. In State v. Hitchcock, we determined that in a case 

in which a defendant is sentenced on three separate counts, a trial court may impose two 

sixty-month prison terms, consecutive to each other (Counts I and II), and consecutive to 

a term of community control (Count III). 5th Dist. Fairfield No. 16-CA-41, 2017-Ohio-8255, 

appeal accepted, 152 Ohio St.3d 1405, 2018-Ohio-723, 92 N.E.3d 877. See also, State 

v. Williams, 5th Dist. Fairfield No. 17-CA-43, 2018-Ohio-4580, ¶ 22, motion to certify 

allowed, 154 Ohio St.3d 1519, 2019-Ohio-768, 118 N.E.3d 257. The Ohio Supreme 

Court has accepted jurisdiction of appeals in Hitchcock and Williams and both cases 

remain pending. 

{¶27} We have also held that when the term of community control includes a 

period spent in a CBCF, a trial court did not have statutory authority to order, as part of 

the original sentence, appellant's placement into a CBCF as part of her community-control 

sanction after her completion of the separate prison term. State v. Weber, 5th Dist. 
Richland County, Case No. 18CA66 8 

Fairfield No. 17-CA-36, 2018-Ohio-3174, ¶ 28, motion to certify allowed, 154 Ohio St.3d 

1476, 2019-Ohio-169, 114 N.E.3d 1204, and appeal not allowed, 154 Ohio St.3d 1477, 

2019-Ohio-169, 114 N.E.3d 1205. 

{¶28} In the instant case, appellant has not pointed to any information in the 

record indicating that any portion of his community-control term was ordered to be served 

in a CBCF. We therefore agree with appellee and follow Hitchcock and Williams in finding 

that the trial court had authority to impose a term of community control to be served 

consecutively to appellant’s prison term. 

{¶29} Appellant’s second assignment of error is therefore overruled. 

CONCLUSION 

{¶30} Appellant’s two assignments of error are overruled and the judgment of the 

Richland County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Gwin, P.J. and 

Baldwin, J., concur.