[Cite as State v. Norris, 2014-Ohio-2199.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. John W. Wise, P.J. 

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

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. CT2013-0052 

 : 

DERRICK C. NORRIS : 

 : 

 : 

 Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Muskingum County 

Court of Common Pleas, Case No. 

CR2003-288A 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: May 19, 2014 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

D. MICHAEL HADDOX DERRICK C. NORRIS pro se 

MUSKINGUM CO. PROSECUTOR #478-560 

ROBERT L. SMITH Marion Correctional Institution 

27 North Fifth St. P.O. Box 57 

Zanesville, OH 43701 Marion, OH 43301 

 
Muskingum County, Case No. CT2013-0052 2 

Delaney, J. 

{¶1} Appellant Derrick C. Norris appeals from the September 26, 2013 Journal 

Entry of the Muskingum County Court of Common Pleas overruling his “Motion for Allied 

Offense Determination.” Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} A statement of the facts underlying appellant’s criminal convictions is not 

necessary to our resolution of this appeal, nor is a restatement of the entire lengthy 

appellate history. The following statement, therefore, references only those portions of 

the case history relevant to the instant appeal. 

{¶3} On September 17, 2004, appellant entered negotiated pleas of guilty to 

one count of murder with a firearm specification [R.C. 2903.02(A)(1)]; one count of 

aggravated robbery [R.C. 2911.01(A)(1)]; and one count of tampering with evidence 

[R.C. 2921.12(A)(1)]. He was sentenced to an aggregate prison term of 33 years to life. 

In exchange for appellee’s recommendation of a 33-year-to-life sentence, appellant 

agreed to waive his right to appeal maximum and/or consecutive sentences. 

{¶4} Appellant did not file a direct appeal of his conviction. Appellant did file a 

number of petitions for post-conviction relief and appeals thereof, all of which were 

unsuccessful. 

{¶5} On March 5, 2010, appellant filed a motion for sentencing, arguing the trial 

court failed to properly advise him of post release control. The trial court denied 

appellant’s motion but we vacated that decision, finding appellant was entitled to a de 

novo resentencing hearing on the authority of State v. Ketterer, 126 Ohio St.3d 448, 
Muskingum County, Case No. CT2013-0052 3 

2010-Ohio-3831, 932 N.E.2d 9. State v. Norris, 5th Dist. Muskingum No. CT10-0020, 

2010-Ohio-6076, ¶ 17. 

{¶6} Appellant was thereupon resentenced with the requisite post release 

control advisements, resulting in another flurry of petitions and appeals. 

{¶7} Relevant to the instant appeal, on September 9, 2013, appellant filed a 

“Motion for Allied Offense Determination” which was overruled by the trial court on 

October 17, 2013. It is from this decision appellant now appeals. 

{¶8} Appellant raises two assignments of error: 

ASSIGNMENTS OF ERROR 

{¶9} “I. WHETHER THE TRIAL COURT’S RECHARACTERIZATION OF 

APPELLANT’S MOTION FOR ‘ALLIED OFFENSE DETERMINATION’ O.R.C. 2941.25; 

AS A POSTCONVICTION RELIEF PETITION (FOR THE PURPOSE OF DENYING 

RELIEF) OFFENDS DUE PROCESS AND FUNDAMENTAL FAIRNESS WHERE THE 

RECORD CLEARLY REVEALS A PRIMA FACIE CASE FOR THE REQUESTED 

RELIEF.” 

{¶10} “II. WHETHER THE DUTY TO ‘INQUIRE’ AND ‘DETERMINE’ WHETHER 

MULTIPLE OFFENSES CONSTITUTE ALLIED OFFENSES OF SIMILAR IMPORT IS 

JURISDICTIONAL AND THEREFORE PLACES A MANDATORY DUTY ON THE 

TRIAL COURT, OR WHETHER, O.R.C. 2941.25 IS ‘DISCRETIONARY,’ AND HENCE, 

MAY BE WAIVED BY THE COURT OR THE DEFENDANT AND SUBJECT TO THE 

APPLICATION OF THE DOCTRINE OF RES JUDICATA.” 
Muskingum County, Case No. CT2013-0052 4 

ANALYSIS 

I., II.

{¶11} Appellant’s two assignments of error are related and will be decided 

together. Although appellant’s argument is scattered and, as appellee points out, does 

not follow the assignments of error, appellant essentially argues the trial court must 

determine whether his convictions were allied offenses of similar import pursuant to 

R.C. 2941.25. We disagree. 

{¶12} Appellant’s motion is barred by res judicata. We have found the issue of 

merger of allied offenses to be barred by res judicata on a defendant's appeal from 

resentencing to impose post-release control because the issue did not arise from the 

resentencing hearing. See, State v. Oweis, 5th Dist. Delaware No. 11 CAA 06 0050, 

2012-Ohio-443, ¶ 12, citing State v. Fischer, 128 Ohio St.3d 92, 2010–Ohio–6238, 942 

N.E.2d 332 and State v. Franklin, 8th Dist. No. 95991, 2011–Ohio–4953. 

{¶13} Appellant had a prior opportunity to litigate the allied-offenses claims he 

sets forth in the instant appeal via a timely direct appeal from the sentencing hearing 

and resulting judgment entry; his most recent round of arguments are therefore barred 

under the doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 

104 (1967). The Perry court explained the doctrine 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 
Muskingum County, Case No. CT2013-0052 5 

been raised by the defendant at the trial which resulted in that 

judgment of conviction or on an appeal from that judgment. 

State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). 

{¶14} Moreover, appellant’s arguments fail substantively. While appellant’s 

argument here does not specifically cite the Ohio Supreme Court’s most recent 

pronouncement on allied offenses, he relies upon its rationale and indeed relied upon 

Johnson extensively in his argument to the trial court. State v. Johnson, 128 Ohio St.3d 

153, 2010-Ohio-6314, 942 N.E.2d 1061. Johnson does not apply retroactively. State v. 

Holliday, 5th Dist. Delaware No. 11CAA1101104, 2012-Ohio-2376, ¶ 16, citing State v. 

Parson, 2nd Dist. Montgomery No. 24641, 2012–Ohio–730. The new judicial ruling may 

not be applied retroactively to a conviction that has become final, i.e., where the 

accused has exhausted all of his appellate remedies. Id., citing Ali v. State, 104 Ohio 

St.3d 328, 2004–Ohio–6592. See also, State v. Hill, 5th Dist. Muskingum No. CT11-

0020, 2011-Ohio-3644, appeal not allowed, 130 Ohio St.3d 1439, 2011-Ohio-5883, 957 

N.E.2d 301; State v. Pearson, 5th Dist. Licking No. 13-CA-59, 2013-Ohio-5690. 

{¶15} We find appellant’s assignments of error to be barred by res judicata and 

the finality of appellate judgments. Appellant’s two assignments of error are overruled. 
Muskingum County, Case No. CT2013-0052 6 

CONCLUSION 

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

the Muskingum County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Wise, P.J. 

Baldwin, J., concur.