[Cite as State v. McCreery, 2015-Ohio-5453.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : 

 : Case No. 15CA10 

 Plaintiff-Appellee, : 

 : 

 vs. : DECISION AND JUDGMENT 

 : ENTRY 

NICHOLAS C. McCREERY, : 

 : 

 Defendant-Appellant. : Released: 12/17/15

__________________________________________________________________ 

APPEARANCES: 

Nicholas C. McCreery, Chillicothe, Ohio, Pro Se Appellant. 

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Robert C. 

Anderson, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee. 

__________________________________________________________________ 

 

McFarland, A.J. 

{¶1} Nicholas C. McCreery appeals his sentence in the Lawrence County 

Court of Common Pleas after he pled guilty to three counts of burglary and one 

count of resisting arrest. On appeal, Appellant contends: (1) the trial court erred 

and abused its discretion when it failed to notify him at sentencing and resentencing that failure to pay the costs of prosecution could result in an order that 

he perform community service; (2) the trial court erred and abused its discretion 

when it failed to consider the offender’s present and future ability to pay fines; and 

(3) trial counsel provided ineffective assistance by failing to object to the trial 
Lawrence App. No. 15CA10 2 

court’s imposition of court costs and costs of prosecution, and by failing to object 

regarding the improper notification regarding possible community service. Upon 

review, we find Appellant’s arguments are barred by the doctrine of res judicata. 

Accordingly, we decline to consider the assignments of error and affirm the 

judgment of the trial court. 

FACTUAL AND PROCEDURAL BACKGROUND 

{¶2} We recount the facts as previously set forth in State v. McCreery, 4th 

Dist. Lawrence No. 10CA17, 2011-Ohio-5885, ¶¶ 2-4 (“McCreery I”). In 

November 2009, Appellant and an accomplice, Christy Stone, were arrested for the 

burglaries of three separate residences in Lawrence County. The Appellant was 

subsequently indicted on three counts of burglary in violation of R.C. 

2911.12(A)(2), second degree felonies, and one count of resisting arrest in 

violation of R.C. 2921.33(A), a second degree misdemeanor. 

{¶3} In January 2010, when the matter came on for pretrial, Appellant 

accepted a plea agreement and pleaded guilty to all charges against him. On 

January 20, 2010, the trial court sentenced him to four years on each burglary 

count, to be served consecutively, and thirty days in jail for the resisting arrest 

charge, to be served concurrently with the burglary sentences. At the sentencing 

hearing, the court misstated the conditions of Appellant’s post-release control. The 

court failed to indicate that post-release control would be mandatory, and would be 
Lawrence App. No. 15CA10 3 

three years for the second-degree felonies for which Appellant was convicted. 

After the court journalized its sentence on February 4, 2010, Appellant filed an 

appeal. 

{¶4} Before the record could be transmitted on appeal, the trial court 

scheduled a re-sentencing hearing. At that hearing, held on April 9, 2010, the 

court noted the deficiencies of its January 20, 2010 sentencing, and then fully 

informed Appellant of the conditions of post-release control. The appeal of the 

trial court’s first sentence was dismissed by mutual agreement and an appeal of 

Appellant’s re-sentencing followed. 

{¶5} In the re-filed appeal, case number 10CA17, Appellant raised two 

assignments of error: (1) that the trial court erred in re-sentencing him without 

vacating the prior judgment entry; and (2) that he received ineffective assistance of 

counsel which rendered his guilty plea involuntary. On November 3, 2011, this 

court issued a decision and judgment entry overruling both assignments of error 

Appellant had presented. The court affirmed the judgment and sentence of the trial 

court. See McCreery I. 

{¶6} On or about March 12, 2015, Appellant filed a pro se “Motion for ReSentencing Based on Void Judgment” in the trial court. The trial court overruled 

Appellant’s motion on April 22, 2015 on the basis that the trial court no longer had 

jurisdiction in the matter. Appellant filed a timely appeal. 
Lawrence App. No. 15CA10 4 

ASSIGNMENTS OF ERROR 

“I. THE TRIAL COURT ERRED AS A MATTER OF LAW, AND 

ABUSED ITS DISCRETION, WHEN IT FAILED TO RESENTENCE DEFENDANT-APPELLANT WHEN IT VIOLATED 

R.C. 2947.23(A)(1)(a), WHEN THE TRIAL COURT FAILED TO 

NOTIFY THE DEFENDANT-APPELLANT AT “SENTENCING” 

ON JANUARY 20TH, 2010 AND THE RE-SENTENCING 

HEARING DATED APRIL 8TH, 2010 THAT FAILURE TO PAY 

ALL THE COSTS OF THIS PROSECUTION FOR WHICH 

EXECUTION IS HEREBY AWARDED COULD RESULT IN AN 

ORDER REQUIRING DEFENDANT-APPELLANT TO PERFORM 

COMMUNITY SERVICE UNTIL THE JUDGMENT IS PAID, OR 

UNTIL THE COURT IS SATISFIED THAT THE DEFENDANTAPPELLANT IS IN COMPLIANCE WITH THE APPROVED 

SCHEDULE. 

II. THE TRIAL COURT ERRED AS A MATTER OF LAW, AND 

ABUSED ITS DISCRETION, WHEN IT FAILED TO RESENTENCE THE DEFENDANT-APPELLANT WHEN IT 

VIOLATED R.C. 2929.19(B)(6), WHEN THE TRIAL COURT 

FAILED TO PROVIDE, BEFORE IMPOSING A FINANCIAL 

SANCTION UNDER SECTION 2929.18 OF THE REVISED CODE, 

THAT THE TRIAL COURT SHALL CONSIDER THE 

OFFENDER’S PRESENT AND FUTURE ABILITY TO PAY THE 

AMOUNT OF THE SANCTION OR FINE. 

III. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE, 

IN VIOLATION OF THE SIXTH AND FOURTEENTH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION 

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, 

FOR FAILING TO OBJECT TO THE TRIAL COURT’S 

IMPOSITION OF COURT COSTS, AND TO PAY ALL THE 

COSTS OF THE PROSECUTION WITHIN THIS CASE, WHEN 

THE TRIAL COURT KNEW DEFENDANT-APPELLANT WAS 

INDIGENT, BECAUSE THE TRIAL COURT APPOINTED 

ATTORNEY DAVID REID DILLON AS COUNSEL FOR 

DEFENDANT-APPELLANT’S APPEAL, AS THE TRIAL COURT 

DID NOT NOTIFY DEFENDANT-APPELLANT MR. MCCREERY 

THAT HIS FAILURE TO PAY ALL THE COSTS OF THIS 
Lawrence App. No. 15CA10 5 

PROSECUTION FOR WHICH EXEUCTION IS HEREBY 

AWARDED, MAY RESULT IN THE COURT ORDERING THE 

DEFENDANT-APPELLANT TO PERFORM COMMUNITY 

SERVICE UNTIL THE JUDGMENT IS PAID OR UNTIL THE 

COURT IS SATISFIED THAT THE DEFENDANT-APPELLANT 

IS IN COMPLIANCE WITH THE APPROVED SCHEDULE.” 

A. STANDARD OF REVIEW 

{¶7} A trial court's decision to grant or deny a R.C. 2953.21 petition for 

post-conviction relief should be upheld absent an abuse of discretion. State v. 

Bennett, 4th Dist. Scioto No. 15CA3682, 2015-Ohio-3832, ¶ 9; State v. Gondor, 

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58. An “abuse of 

discretion” is more than an error of law or judgment; it implies that the trial court's 

attitude was unreasonable, arbitrary or unconscionable. State v. Herring, 94 Ohio 

St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Adams, 60 Ohio St.2d 151, 157, 

404 N.E.2d 144 (1980). In reviewing for an abuse of discretion, appellate courts 

must not substitute their judgment for that of the trial court. Bennett, supra, citing, 

State ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 

N.E.2d 1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 

1181 (1991). 

B. LEGAL ANALYSIS 

{¶8} Here, Appellant contends the trial court erred by overruling his 

“Motion for Re-Sentencing Based on Void Judgment.” While we affirm the trial 

court’s decision, we do so on grounds other than those stated by the trial court. 
Lawrence App. No. 15CA10 6 

“The doctrine of res judicata bars the relitigation of issues that were raised on 

appeal or could have been raised on appeal.” State v. Cruz, 8th Dist. Cuyahoga No. 

101544, 2014-Ohio-5695, ¶ 14, quoting, In re A.I., 8th Dist. Cuyahoga No. 99808, 

2014-Ohio-2259, ¶ 34. For the reasons which follow, we find the doctrine of res 

judicata applies to bar Appellant’s current appeal of his motion for resentencing. 

{¶9} In Cruz, supra, Cruz was convicted by a jury of various counts of 

trafficking and possession of drugs (Major Drug Offender) and tampering with 

evidence. He filed a direct appeal and his convictions were upheld. Cruz also filed 

a motion to reopen his appeal based on an ineffective assistance of counsel claim. 

The motion was denied. 

{¶10} In the case we have cited, Cruz appealed the trial court’s overruling 

his subsequently filed “Motion to Vacate Court Costs and Fines.” In his first 

assignment of error, Cruz argued that the trial court's failure to comply with the 

community service notification in R.C. 2947.23(A)(1)(a) when it imposed costs at 

the sentencing hearing deprived him of his right to due process, in violation of the 

Sixth and Fourteenth Amendments to the United States Constitution, and Article I, 

Sections 1, 10 and 16 of the Ohio Constitution. In his second assignment of error, 

Cruz argued that the trial court erred by failing to consider his ability to pay before 

imposing a mandatory drug fine, in violation of the Sixth and Fourteenth 

Amendments to the United States Constitution, and Article I, Sections 1, 10, and 
Lawrence App. No. 15CA10 7 

16 of the Ohio Constitution. Cruz disputed the imposition of the $62,500 fine, 

alleging violations of R.C. 2929.18(B)(1), which prohibits the imposition of an 

otherwise mandatory fine against an indigent offender, and R.C. 2929.19(B)(5), 

which requires consideration of the offender's present and future inability to pay. 

{¶11} In resolving Cruz’s appeal of his motion to vacate fines and costs, the 

Eighth District Court of Appeals’ brief opinion held: 

“In the present case, Appellant was aware at the time he brought his 

direct appeal that the court had imposed costs and fines. Therefore, 

because he could have raised the instant challenges in his direct 

appeal, but did not, his claims are barred by res judicata. See State v. 

Walker, 8th Dist. Cuyahoga No. 96305, 2011-Ohio-5270; State v. 

Williams, 11th Dist. Lake No.2012-L-111, 2014-Ohio-65, ¶ 15.” 

As such, the Eighth District Court of Appeals declined to address the merits of 

Cruz’s assignments of error. 

{¶12} In our own appellate district, we have also had occasion to consider 

application of the doctrine of res judicata in similar proceedings. We found State 

v. Bennett, supra, particularly instructive. In Bennett, we paused to address certain 

procedural issues. There, we noted although titled a “Motion For Re-Sentencing,” 

Bennett couched his motion as a petition for post-conviction relief and the State 

approached the motion as such in its memorandum contra. We observed: 

“The Ohio Supreme Court has held that if ‘a criminal defendant, 

subsequent to his or her direct appeal, files a motion seeking vacation 

or correction of his or her sentence on the basis that his or her 

constitutional rights have been violated, such a motion is a petition for 

post-conviction relief as defined in R.C. 2953.21.’ (Emphasis added.) 
Lawrence App. No. 15CA10 8 

State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131, at the syllabus 

(1997). However, since Reynolds many appellate courts have treated 

motions asking for re-sentencing as a petition for post-conviction 

relief, whether or not there is an alleged constitutional violation. See, 

State v. Turner-Frantz, 7th Dist. Jefferson No. 14 JE 33, 2015-Ohio2111, at ¶ 17 (motion for re-sentencing treated as though alleged 

violations were of statute and criminal rule); State v. Gumm, 8th Dist. 

Cuyahoga App. No. 101496, 2015-Ohio-1539, at ¶ 3 (referring to an 

earlier case where a motion for re-sentencing was treated as such a 

petition when the claim was for violation of a criminal rule).” Bennett, 

supra, at ¶ 6. 

 “Arguably, this violates the Reynolds syllabus that holds the basis of 

the petition should be a claim that ‘constitutional rights have been 

violated.’ Moreover, it seems to violate the statute itself. R.C. 

2953.21(A)(1)(a) states in pertinent part: 

‘Any person who has been convicted of a criminal offense * * * who 

claims that there was such a denial or infringement of the person's 

rights as to render the judgment void or voidable under the Ohio 

Constitution or the Constitution of the United State[s] * * * may file a 

petition in the court that imposed sentence, stating the grounds for 

relief relied upon, and asking the court to vacate or set aside the 

judgment or sentence or adjudicated a delinquent child and who 

claims that there was such a denial or infringement of the person's 

rights as to render the judgment void or voidable under the Ohio 

Constitution or the Constitution of the United States * * *’ (Emphasis 

added.)” Bennett, supra at ¶ 7. 

{¶13} In Bennett, we pointed out the Ohio General Assembly intended a 

petition for post-conviction relief to challenge violations of state and federal 

constitutional provisions, and the motion therein was an example of how Reynolds

and R.C. 2953.21(A)(1)(a) had been taken out of context. Id. at ¶ 8. In Bennett, we 

found no reference to, or claim of, a constitutional violation anywhere in 

appellant's motion, but instead allegations of violations of various criminal 
Lawrence App. No. 15CA10 9 

sentencing laws. We observed at ¶ 8: “It seems counter-intuitive, therefore, to treat 

[Bennett’s] motion as a petition for post-conviction relief. Nevertheless, this was 

how it was treated in the trial court and we do so here to remain consistent.”1

{¶14} Finally, in Bennett, we recognized the Ohio Supreme Court’s 

decision that the doctrine of res judicata applies when determining whether postconviction relief is warranted under R.C. 2953.21. Id. at ¶ 10. See State v. Szefcyk,

77 Ohio St.3d 93, 671 N.E.2d 233, at the syllabus (1996); State v. Nichols, 11 Ohio 

St.3d 40, 42, 463 N.E.2d 375 (1984); State v. Perry, 10 Ohio St.2d 175, 226 

N.E.2d 104, at paragraph eight of the syllabus (1967). In other words, a petitioner 

may not raise, for purposes of post-conviction relief, any error that could have been 

raised on direct appeal. See, State v. Franklin, 4th Dist. Meigs No. 05CA9, 2006-

Ohio-1198, at ¶ 10; State v. Peeples, 4th Dist. Pickaway No. 05CA25, 2006-Ohio218, at ¶ 11. In Bennett, the alleged errors appellant raised could have been raised 

in his direct appeal. Therefore, unless Bennett could point to an exception from 

the doctrine of res judicata, his claims would be barred. Id. at ¶ 10. 

{¶15} Also in Bennett, we observed one exception that applied to both the 

time limitation for filing a post-conviction relief petition and the application of the 

doctrine of res judicata, the existence of a void judgment. Id. at ¶ 11. Res judicata 

does not apply to void judgments. Id. See, State v. Mitchell, 187 Ohio App.3d 315, 

 

1

 In Bennett, we further pointed out the appellant’s petition was untimely and could only be considered for specific 

reasons outlined in RC. 2953.23. Appellant did not attempt to show constitutional violations or any applicable 

exception from the time limitation. As such, it could not have been considered in the first place. Id. at ¶ 9. 
Lawrence App. No. 15CA10 10 

2010-Ohio-1766, 931 N.E.2d 1157, at ¶ 22, fn.1. We cited State v. Lowe, 9th Dist. 

Summit No. 27199, 2014-Ohio-1817, which held that a void judgment may be 

challenged at any time. Id. at ¶ 7. In Bennett, we summarized the issues as 

follows: 

“In short, the only questions before us are whether the alleged errors 

are ones that had the effect of rendering the 2005 sentencing judgment 

void or voidable. If the alleged errors could have been raised on 

direct appeal, as they clearly could have in light of the fact that they 

occurred during the sentencing phase of these proceedings, they 

should have been raised on direct appeal and are now barred from 

being raised. However, if the alleged errors were such that they 

rendered the judgment of conviction and sentence void, they may be 

raised at any time - even now, more than a decade after appellant's 

judgment of conviction and sentence. With these principles in mind, 

we turn our attention to the merits of appellant's assignments of error.” 

Id. at ¶ 12. 

{¶16} In Bennett, similar to the case sub judice, appellant argued that the 

trial court erred by dismissing his motion for re-sentencing because a 2005 

sentencing entry failed to alert him to the possible penalty for failing to pay court 

costs - specifically, that he could be required to perform community service if he 

failed to pay those costs. We stated: 

“Even if we assume, arguendo, that the trial court erred, the Ohio 

Supreme Court has held that errors ‘in imposing court costs without 

so informing a defendant in court * * * does not void the * * * entire 

sentence.’ State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 

N.E.2d 278, at ¶ 3. In other words, any error regarding imposition of 

court costs renders the judgment voidable, rather than void.” 

{¶17} In Bennett, we also recognized the language of State v. Spencer, 
Lawrence App. No. 15CA10 11 

4th Dist. Scioto No. 15CA3681, 2015-Ohio-1445, which held: 

“Spencer's claim that the error in his sentence as it relates to court 

costs renders that portion of his sentence ‘void’ is not supported by 

law. The Supreme Court of Ohio makes a clear distinction between 

sentencing errors involving post[-]release control, which may result in 

a void portion of a sentence, and sentencing errors involving the 

imposition of court costs. ‘There is a significant difference between 

post[-]release control and court costs in regard to the duty of the trial 

court.’ A trial court has a statutory duty to provide notice of post[-

]release control, but exercises discretion in the waiver of court costs.”2

{¶18} In Bennett, we concluded that any failure to alert an appellant that the 

failure to pay court costs may require the performance of community service in 

lieu thereof, did not render the sentencing entry void. Other districts have also said 

the same. Id. at ¶ 18. See, State v. Barnes, 12th Dist. Warren No. CA2014-03-049, 

2015-Ohio-651, at ¶¶ 11-12; State v. Graham, 3rd Dist. Hancock No. 5-13-31, 

2014-Ohio-1785, at ¶ 18; State v. Priest, 8th Dist. Cuyahoga App. No. 100614, 

2014-Ohio-1735, at ¶ 10. We held: “Given that such arguable error did not render 

the 2005 judgment void, [Bennett] could have raised it in his direct appeal of right 

and failed to do so. Therefore, any such error was barred from being raised at [this 

date] both by provisions of R.C. 2953.21(A) and the doctrine of res judicata.” We 

overruled Bennett’s assignment of error arguing that the trial court erred by 

dismissing his motion for re-sentencing because the judgment entry failed to alert 

 

2

 In Bennett and Spencer, we further noted the distinction that court costs are not punishment and are civil in nature. 

Any failure to inform regarding court costs does not create a “taint” on the sentence nor does it affect another branch 

of government. Bennett, supra, at ¶ 17; Spencer, supra, at ¶ 8. 
Lawrence App. No. 15CA10 12 

him that community service would be required as a possible penalty for failing to 

pay his court costs. 

{¶19} The same reasoning is equally applicable to Appellant’s assignments 

of error here. Based on the analysis set forth in Bennett, we construe Appellant’s 

“Motion for Re-Sentencing Based on Void Judgment” as an untimely petition for 

post-conviction relief. Furthermore, Appellant’s first assignment of error, arguing 

that the trial court failed to notify him at sentencing and re-sentencing about the 

possibility that community service could be required as a possible penalty if he did 

not pay court costs does not render the April 2010 sentencing entry void. 

Therefore, as in Bennett, Appellant could have raised this issue in his direct appeal. 

 {¶20} Appellant could also have raised the issue of the trial court’s alleged 

failure to consider his present and future ability to pay fines and costs in his direct 

appeal. As pointed out in Cruz, Appellant was aware that fines and costs had been 

imposed. And, Appellant’s direct appeal raised the issue of ineffective assistance 

without including the argument he now makes, that his trial counsel failed to object 

to the necessary community service notification. Appellant could have included 

this argument in the direct appeal but did not. 

{¶21} In sum, all arguments Appellant sets forth in his current appeal of the 

trial court’s April 22, 2015 entry, which denied his motion for resentencing based 

on void judgment, could have been raised in the direct appeal. Because Appellant 
Lawrence App. No. 15CA10 13 

failed to do so, they are now barred by application of the doctrine of res judicata. 

For the foregoing reasons, we decline to consider the merits of Appellant’s 

arguments and affirm the judgment of the trial court. 

 JUDGMENT AFFIRMED. 
Lawrence App. No. 15CA10 14 

Harsha, J., concurring: 

{¶22} I concur in affirming the trial court’s judgment but do so for a 

different reason than the majority opinion. Insofar as McCreery failed to raise a 

constitutional error for the contentions covered in his first and second assignments 

of error, postconviction relief is not available. See State v. Bennett, 4th Dist. 

Scioto No. 15CA3682, 2015-Ohio-3832, ¶ 21 (Harsha, J., dissenting), citing R.C. 

2953.21(A)(1)(a). For his constitutional ineffective-assistance claim raised in his 

third assignment of error, I agree that res judicata barred him from raising that 

claim in his postconviction action. 
Lawrence App. No. 15CA10 15 

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the 

Lawrence County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON 

BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR 

THIS COURT, it is temporarily continued for a period not to exceed sixty days 

upon the bail previously posted. The purpose of a continued stay is to allow 

Appellant to file with the Supreme Court of Ohio an application for a stay during 

the pendency of proceedings in that court. If a stay is continued by this entry, it 

will terminate at the earlier of the expiration of the sixty day period, or the failure 

of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 

forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of 

the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses 

the appeal prior to expiration of sixty days, the stay will terminate as of the date of 

such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

Harsha, J.: Concurs in Judgment Only with Opinion. 

Hoover, P.J.: Concurs in Judgment Only. 

 

For the Court, 

 BY: ____________________________ 

 Matthew W. McFarland, 

 Administrative Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.