[Cite as State v. Devore , 2021-Ohio-1760.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. John W. Wise, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. 20-COA-030 : (consolidated with 20-COA-036) ADAM M. DEVORE : : : Defendant-Appellan t : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Ashland County Courtof Common Pleas, Case No. 17-CRI002

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY:

APPEARANCES: May 20, 2021

For Plaintiff-Appellee: For Defendant-Appellant: CHRISTOPHER R. TUNNELL ADAM M. DEVORE, PRO SE ASHLAND COUNTY PROSECUTOR #A704-923 Richland Correctional Institute AMY R. INZINA P.O. Box 8107 110 Cottage Stree t 1001 South Olivesburg Road Ashland, OH 44805 Mansfield, OH 44901[Cite as State v. Devore , 2021-Ohio-1760.]

Delaney, J. {¶1} Defendant-Appellant Adam M. Devore appeals the September 2 5, 2020, December 15, 2020, and February 10, 2021 judgment entries of th e Ashland County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.

STATEMENT OF THE CASE 1 {¶2} On January 12, 2017, the Ashland County Grand Jury indicte d DefendantAppellant Adam M. Devore on one count of rape in violation of R .C. 2907.02(A)(2), one count of abduction in violation of R.C. 2905.02(A)(2), and one count of domestic violence in violation of R.C. 2919.25(A). Following a jury trial in the Ashland County Common Pleas Court, Appellant was acquitted of rape, but convicted of abduct ion and domestic violence. The trial court sentenced Appellant to 36 months in prison on t he abduction conviction and to 36 months in prison on the domestic violence conviction, to be served consecutively to one another for an aggregate prison sentence o f 72 months. {¶3} This Court affirmed the judgment of conviction and sentenc e, and the Ohio Supreme Court denied Appellant's appeal. State v. Devore , 5th Dist. Ashland No. 18- COA-011, 2018-Ohio-4189, appeal not allowed, 154 Ohio St.3d 150 2, 2019-Ohio-345, 116 N.E.3d 155, and appeal not allowed, 155 Ohio St.3d 1457, 20 19-Ohio-1759, 122 N.E.3d 217, reconsideration denied, 156 Ohio St.3d 1467, 2019-O hio-2892, 126 N.E.3d 1177. Appellant's motion to reop en his appeal pursuant to App. R. 26(B) was also denied by this Court on February 6, 2019, and Appellant appealed our d ecision to the Ohio Supreme Court.

1 A rendition of the facts is unnecessary for our resolution of t he issues raised in this appeal but can be found in this Court's opinion on direct appeal of Appellant's c onviction and sentence. See State v. Devore , 5th Dist. Ashland No. 18-COA-011, 2018-Ohio-4189.[Cite as State v. Devore , 2021-Ohio-1760.]

{¶4} On April 4, 2019, Appellant filed a motion for jail time c redit. The trial court overruled the motion and Appell ant appealed the judgment to thi s Court. We affirmed the trial court’s judgment in State v. Devore , 5th Dist. Ashland No. 19-COA-012, 2019-Ohio4034, appeal not allowed, 158 Ohio St.3d 1451, 141 N.E.3d 979, 2020-Ohio-1090. {¶5} On August 14, 2019, Appellant filed a motion for leave to file a delayed

motion for new trial and a motion for new trial on the basis of newly discovered evidence. The trial court overruled the motion for new trial and Appellan t appealed the judgment to this Court. We affirmed the trial court’s judgment in State v. Devore , 5th Dist. Ashland No. 19-COA-031, 2020-Ohio-1132, appeal not allowed, 159 Ohio St.3d 1417, 147 N.E.3d 666, 2020-Ohio-3365. {¶6} On July 27, 2020, Appellant filed a Motion to Correct Ille gal and Void Sentence. In his motion, he argued the offenses of abduction an d domestic violence were allied offenses of similar import and should have merged for pu rposes of sentencing. The trial court denied the motion on September 25, 2020. The trial court noted Appellant raised this argument in his Application for Reopening of his direct ap peal, which we denied on February 6, 2019. The trial court found the issue was barred by res judicata. Appellant appealed the September 25, 2020 judgment entry to this Court in Case No. 20-COA-030. {¶7} On November 19, 2020, Appellant filed a Delayed Motion to Quash/Dismiss Count Three of the January 12, 2017 indictment. The trial court denied the motion on December 15, 2020, finding it was without jurisdiction to consi der the motion due to the appeal pending before this Court regarding Appellant’s conv iction for domestic violence. Appellant filed a motion to reconsider, which the tri al court denied on[Cite as State v. Devore , 2021-Ohio-1760.]

February 10, 2021. Appellant filed a notice of appeal of the ju dgments to this Court in

Case No. 20-COA-036. {¶8} It is from these judgment entries that Appellant now appea ls in Case Nos.

20- COA-030 and 20-COA-036. {¶9} We note, this matter comes before this Court pursuant to t he accelerated calendar and App. Rule 11.1. Accordingly, it is sufficient comp liance with Appellate Rule 12(A) for the statement of the reason for the court's decision as to each error to be in brief and conclusionary form. This appeal shall be considered in acco rdance with the rule.

ASSIGNMENTS OF ERROR {¶10} Appellant raises three Assignments of Error: {¶11} “I. BECAUSE THE TRIAL COURT MADE A FINDING OF ALLIED

OFFENSES AT SENTENCING AND THEN IMPOSED MAXIMUM AND CONSECUTIVE SENTENCE [SIC], IT ERRED BY APPLYING RES JUDICATA AS A BAR TO R EVIEW VOID SENTENCE BECAUSE STATE V. WILLIAMS, 148 OHIO ST., 3D 403 P ROVIDES

A COURT LACKS AUTHORITY TO IMPOSE CONCURRENT OR CONSECUTIVE PRISON TERMS AFTER ALLYING OFFENSES AND, THUS, PROVIDES AN

EXCEPTION TO RES JUDICATA AS THE SENTENCE IS VOID. {¶12} “II. THE TRIAL COURT ERRED BY CLAIMING IT DID NOT HAVE

JURISDICTION TO DISMISS COUNT THREE FOR LACK OF SUBJECT MATTER

JURISDICTION DUE TO A PENDING APPEAL. {¶13} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILE D TO DISMISS COUNT THREE (3) FOR STRUCTURAL ERROR.”[Cite as State v. Devore , 2021-Ohio-1760.]

ANALYSIS I. Allied Offenses {¶14} In his first Assignment of Error, Appellant contends the trial court erred when it applied res judicata to deny Appellant’s motion to correct i llegal and void sentence. We disagree. {¶15} In making its judgment, the trial court referred to our F ebruary 6, 2019 judgment entry denying Appellant’s Application for Reopening pu rsuant to App.R. 26(B). On December 21, 2018, Appellant filed an Application for Reopen ing in appellate Case No. 18-COA-011. He argued in his first proposed assignment of e rror that his trial counsel was ineffective for failing to argue that his sentence for dome stic violence and his sentence for abduction were allied offenses of similar import; therefore, the offenses should merge for sentencing purposes. {¶16} In our judgment entry denying the Application, we conduct ed a detailed analysis of the issue of allied offenses. We stated: The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject f or the same offence to be twice put in jeopardy of life or limb." This prot ection applies to Ohio citizens through the Fourteenth Amendment to the United St ates Constitution, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and is additionally guaranteed by the Ohio Constitution, Article I, Section 10. The Double Jeopardy Clause protects agai nst three abuses: (1) “a second prosecution for the same offense after ac quittal,” (2) “a second prosecution for the same offense after conviction," a nd (3) "multiple punishments for the same offense." North Carolina v. Pearce, 395[Cite as State v. Devore , 2021-Ohio-1760.]

U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). Revised Code, Section 2941.25 reads, (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the i ndictment or information may contain counts for all such offenses, but th e defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offen ses of dissimilar import, or where his conduct results in two or mo re offenses of the same or similar kind committed separately or wi th 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.

In State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme Court held: Under R.C. 2941.25, the court must determine prior to sentencin g whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract compari son of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is pos sible[Cite as State v. Devore , 2021-Ohio-1760.]

to commit one offense and commit the other with the same conduc t, not whether it issues: (1) "a second prosecution for the same o ffense after acquittal," (2) "a possible to commit one without committ ing the

other. Blankenship , 38 Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J., concurring) ("It is not necessary that both cri mes are always committed by the same conduct but, rather, it is suffici ent if both offenses can be committed by the same conduct. It is a mat ter of possibility, rather than certainty, that the same conduct wi ll constitute commission of both offenses." [Emphasis sic]). If th e offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar impor t. If the multiple offenses can be committed by the same conduct,

then the court must determine whether the offenses were committ ed by the same conduct, i.e., "a single act, committed with a sing le state

of mind." Brown , 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting). If the answer to both questions is yes, then the offenses are a llied offenses of similar import and will be merged. Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has sepa rate[Cite as State v. Devore , 2021-Ohio-1760.]

animus for each offense, then, according to RC. 2941.25(B), the offenses will not merge. The Ohio Supreme Court in State v. Ruff , 143 Ohio St.3d 114, 2015- Ohio-995, 34 N.E.3d 892, addressed the issue of allied offenses , determining the analysis set forth in Johnson to be incomplete. The Court

in Ruff , held in paragraphs 24-26 as follows: When the defendant's conduct constitutes a single offense, the defendant may be convicted and punished only for that offense. When the conduct supports more than one offense, however, a cou rt must conduct an analysis of allied offenses of similar import t o determine whether the offenses merge or whether the defendant may be convicted of separate offenses. R.C. 2941.25(B). A trial court and the reviewing court on appeal when considerin g whether there are allied offenses that merge into a single conv iction under R.C. 2941.25(A) must first take into account the conduct of the defendant. In other words, how were the offenses committed? If any of the following is true, the offenses cannot merge and the def endant may be convicted and sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance-in other word s, each offense caused separate, identifiable harm, (2) the offenses we re committed separately, and (3) the offenses were committed with separate animus or motivation.[Cite as State v. Devore , 2021-Ohio-1760.]

At its heart, the allied-offense analysis is dependent upon the

facts of a case because R.C. 2941.25 focuses on the defendant's conduct. The evidence at trial or during a plea or sentencing h earing will reveal whether the offenses have similar import. When a defendant's conduct victimizes more than one person, the harm f or each person is separate and distinct, and therefore, the defend ant can be convicted of multiple counts. Also, a defendant's conduc t that constitutes two or more offenses against a single victim can su pport multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. W e therefore hold that two or more offenses of dissimilar import e xist within the meaning of RC. 2941.25(B) when the defendant's condu ct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable. Appellant, in the case sub judice, was convicted of abduction i n violation of R.C. 2905.02(A)(2), a felony of the third degree, and domestic violence in violation of R.C. 2919.25(A). R.C. 2905.02 stated, in relevant part, as follows: (A) No perso n, without privilege to do so, shall knowingly do any of the follo wing: ... (2) By force or threat, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear. In turn, RC. 2919.25 states, in relevant part, as follows:[Cite as State v. Devore , 2021-Ohio-1760.]

"(A) No person shall knowingly cause or attempt to cause physic al harm to a family or household member." There was testimony at trial that appellant, who was living at times with the victim, hit her on the way home from a bar. Appellant moved out of the victim's house the next day, but later returned. The victim testified that on January 8, 2017, she woke up not being able to breathe very well while appellant was strangling or hitting her and yelling at her. He was holding her by the neck. The victim testified that she was trying to pu sh appellant

off of her and that he had his hand around her throat and his a rm was up on her throat and he was hitting her with his fists all over. S he testified that appellant was trying to tire her out by hitting her and that he got off of her and he sat on the other end of the couch while screaming at her . She testified that whenever she tried to speak, appellant would go off on her and that he held her hair down and "said that I am not going to loo k at any more niggers, and he poked his finger down in my eye socket." Transc ript at 49. The victim further testified that the next morning, appellant w ould not permit her to tend to her sick child and that it was not until January 9, 2017 when appellant left to get cigarettes, that the victim was able to l eave the house. We find that appellant committed separate and distinct crimes a nd the offenses were separated by time and occurred in different l ocations. Because appellant did not commit the abduction and domestic vio lence offenses in a single act, we find that the offenses should not merge and that appellate counsel was not ineffective in failing to raise a mer ger argument.[Cite as State v. Devore , 2021-Ohio-1760.]

To any extent that appellant argues that his conviction for abd uction should merge with rape, we note that appellant was not convicte d of rape. (Judgment Entry, Feb. 6, 2019). {¶17} We have held that res judicata bars an appellant from rai sing issues that were raised in the appellant’s direct appeal and issues the app ellant could have raised in the direct appeal. State v. Porter , 5th Dist. Perry No. 18-CA-00022, 2019-Ohio-3009, ¶ 37 citing State v. Szefcyk , 77 Ohio St.3d 93, 96, 671 N.E.2d 233, 1996–Ohio–337; State

v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 18, abro gated on other grounds by State v. Henderson , 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. Under the doctrine of res judicata, a final judgment of co nviction bars a convicted defendant who was represented by counsel from raising and litig ating in any proceeding except an appeal from that judgment, any defense or claimed lac k of due process that was raised or could have been raised by the defendant at the tr ial, which resulted in that judgment of conviction, or on an appeal from that judgment. State v. Szefcyk , 77 Ohio St.3d 93, 96, 671 N.E.2d 233, 1996–Ohio–337; State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. See, State v. Cuthbert , 5th Dist. Fairfield No. 18-CA-33, 2019-Ohio-96, ¶¶ 14-16, appeal not allo wed, 155 Ohio St.3d 1439, 2019-Ohio-1536, 121 N.E.3d 410. {¶18} Based on our February 6, 2019 judgment entry, which we in corporate into this Opinion, and the doctrine of res judicata, we find no erro r for the trial court to deny Appellant’s motion to correct illegal and void sentence. {¶19} Appellant’s first Assignment of Error is overruled.[Cite as State v. Devore , 2021-Ohio-1760.]

II. and III. Count Three – Domestic Violence {¶20} In his second and third Assignments of Error, Appellant c ontends the trial court erred as to Count Three of the indictment, domestic viole nce. We disagree. {¶21} Appellant first contends the trial court was incorrect wh en it held it could not rule on Appellant’s motion to quash/dismiss Count Three due to Appellant’s pending appeal in Case No. 20-COA-030. “An appeal is perfected upon the filing of a written notice of appeal. R.C. 2505.04. Once a case has been appealed, the tri al court loses jurisdiction except to take action in aid of the appeal . State ex rel. Special Prosecutors v. Judges,

Court of Common Pleas (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162.” State v. Washington , 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, 2013 WL 6067981, ¶ 8 quoting In re S.J. , 106 Ohio St.3d 11, 2005-Ohio-3215, 829 N.E.2d 1207, ¶ 9. The trial court denied Appellant’s motion to correct illegal and void sentence, which Appellant appealed to this Court on October 16, 2020. On Novemb er 19, 2020, Appellant filed a Delayed Motion to Quash/Dismiss Count Three of the Janu ary 12, 2017 indictment. The motion specifically regarded the domestic violence offense that was of issue in Appellant’s appeal as to the alleged allied offenses of abducti on and domestic violence. We find the trial court lost jurisdiction to consider the Novem ber 19, 2020 motion while the appeal was pending before this Court. {¶22} As to Appellant’s third Assignment of Error, we find that res judicata bars Appellant’s argument that the trial court failed to dismiss Cou nt Three from the indictment due to structural error. Appellant’s claims concerning structur al error as to Count Three of the indictment could have been raised by Appellant on direct appeal and are now barred by res judicata.[Cite as State v. Devore , 2021-Ohio-1760.]

{¶23} Appellant’s second and third Assignments of Error are ove rruled.

CONCLUSION {¶24} The judgments of the Ashland County Court of Common Pleas are affirmed. By: Delaney, J., Wise, John, P.J. and Wise, Earle, J., concur.