[Cite as State v. Turrentine, 2010-Ohio-4826.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-10-40 

 v. 

JAMES L. TURRENTINE, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2003 0372 

Judgment Affirmed 

Date of Decision: October 4, 2010 

 

APPEARANCES: 

James L. Turrentine, Jr., Appellant 

Jana E. Emerick for Appellee 
Case No. 1-10-40 

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WILLAMOWSKI, P.J.

{¶1} Defendant-appellant James L. Turrentine, Jr. (“Turrentine”) brings 

this appeal from the judgment of the Court of Common Pleas of Allen County 

denying his motion to modify his prison sentence. For the reasons set forth below, 

the judgment is affirmed. 

{¶2} On September 19, 2003, Turrentine entered a negotiated plea of 

guilty to two counts of rape and one count of gross sexual imposition. As part of 

the plea agreement, the parties stipulated to an agreed sentence recommendation of 

six years in prison for each count of rape and three years in prison for the gross 

sexual imposition, with the sentences to run consecutively. The trial court 

accepted the guilty plea and sentenced Turrentine to the recommended sentence 

for a total sentence of fifteen years in prison. 

{¶3} On January 15, 2008, Turrentine filed a motion to modify his 

sentence, alleging that his sentence was contrary to law because he was given 

more than the minimum sentence. The trial court overruled the motion on January 

16, 2008. Turrentine then appealed that judgment to this court and was assigned 

case number 1-08-18. On appeal, Turrentine argued that the trial court erred in 

sentencing him to consecutive sentences for allied offenses, failed to require a presentence investigation, and erred in sentencing him to more than the minimum 

sentence. This court overruled the assignments of error pursuant to R.C. 
Case No. 1-10-40 

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2953.08(D)(1), which prevents review of a sentence that is jointly recommended 

by the State and the defendant and is imposed by the trial court. State v. 

Turrentine, 3d Dist. No. 1-08-18, 2008-Ohio-3231 (“Turrentine I”). This court 

also held that a pre-sentence investigation was not mandated, so the trial court did 

not err by failing to order one. Id. 

{¶4} On April 21, 2010, Turrentine again filed a motion to modify his 

sentence, alleging that his original sentence was invalid because they were allied 

offenses of similar import which should have merged upon sentencing. The trial 

court overruled the motion on April 23, 2010. Turrentine appeals from this 

judgment and raises the following assignments of error. 

First Assignment of Error 

The trial court erred by failing to engage on the record, the 

analysis of the offenses charged as required by R.C. 2941.25 to 

determine allied offenses of similar import. 

Second Assignment of Error 

The trial court erred by failing in its mandatory duty to merge 

allied offenses of similar import, prior to sentencing 

[Turrentine]. 

Third Assignment of Error 

The trial court erred by sentencing [Turrentine] consecutively 

for allied offense (sic) of similar import. 
Case No. 1-10-40 

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Fourth Assignment of Error 

The trial court abused its power and discretion, by failing to 

adhere to its own rulings on recidivism unlikely factors, as 

stated in the judgment entry or sentence, and imposed the 

sentences consecutively. 

Fifth Assignment of Error 

[Turrentine’s] trial counsel failed to object to the imposition of 

consecutive sentences for allied offenses of similar import, and 

failed to move the trial court to merge the allied offenses 

thereby creating deficient performances and ineffective 

assistance of counsel. 

{¶5} This court notes that all five assignments of error are based upon the 

sentence imposed back in 2003. No direct appeal was taken from that sentence. 

Since the underlying motion and the appeal were filed after the time for a direct 

appeal had passed, claims a denial of rights, and seeks to void the judgment of 

sentence, the motion and the appeal are based upon a petition for post-conviction 

relief. State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131. Thus, we 

will treat the motion to modify his sentence as a petition for post-conviction relief. 

State v. Holdcroft, 3d Dist. No. 16-06-07, 2007-Ohio-586, ¶11. 

{¶6} A petition for post-conviction relief must “be filed no later than one 

hundred eighty days after the date on which the trial transcript is filed in the court 

of appeals in the direct appeal * * *.” R.C. 2953.21(A)(2). However, if no direct 

appeal is taken, the petition must be filed within one hundred eighty days after the 

expiration of the time for the filing of the direct appeal. Id. If a defendant fails to 
Case No. 1-10-40 

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file a timely petition for post-conviction relief, the trial court may not consider the 

motion unless one of the two exceptions is met. R.C. 2953.23(A). These 

exceptions are 1) that there is a newly recognized federal or state right which 

would have precluded a finding of guilty or 2) DNA testing is now available 

which will establish actual innocence of the felony charged. Id. at (A)(2). 

{¶7} In this case, Turrentine did not file his motion for several years, and 

thus did not file within the required time frame for a motion for post-conviction 

relief. Turrentine does not allege any new right or evidence. Instead, his only 

complaint is that his sentence was improperly imposed. This does not meet either 

of the exceptions for an untimely petition. As a matter of law, the trial court 

lacked jurisdiction to consider Turrentine’s motion because it was untimely. See 

Holdcroft, supra. 

{¶8} Even if Turrentine’s motion was timely filed, the assignments of 

error would be barred by the doctrine of res judicata. 

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 been raised by the defendant at the 

trial which resulted in that judgment of conviction or on an 

appeal from that judgment. As stated in 18 American 

Jurisprudence 2d 505, Section 33: 

‘Just as the petitioner’s knowledge, at the time of trial, or the 

error of fact relied upon, or his fault in not discovering such 

error previously, will bar relief under a common-law writ of 
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error coram nobis, such factors will also bar a comparable 

statutory (postconviction) remedy.’ 

State v. Perry (1967), 10 Ohio St.2d 175, 180-81, 226 N.E.2d 104. This doctrine 

includes all issues that either were raised or could have been raised on direct 

appeal. Grava v. Parkman (1995), 73 Ohio St.3d 379, 653 N.E.2d 226. 

{¶9} In this appeal, all of the issues raised by Turrentine could have been 

and should have been raised on direct appeal. They were not. Thus, they are 

barred by the doctrine of res judicata. In addition, the assignments of error 

dealing with allied offenses of similar import were previously addressed by this 

court in Turrentine I. Turrentine did not appeal that ruling to the Ohio Supreme 

Court. Therefore, that issue is the law of the case and need not be addressed 

again. For these reasons, all five assignments of error are overruled. 

{¶10} The judgment of the Court of Common Pleas of Allen County is 

affirmed. 

Judgment Affirmed 

ROGERS and PRESTON, J.J., concur. 

/jlr