[Cite as State v. Adams, 2012-Ohio-3325.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

SCIOTO COUNTY 

STATE OF OHIO, : Case No. 11CA3452 

 : 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

JOHN ADAMS, : 

 : RELEASED 07/19/12 

 

 Defendant-Appellant. : 

______________________________________________________________________ 

APPEARANCES: 

James H. Banks, Dublin, Ohio, for appellant. 

Mark E. Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} John Adams appeals from the sentence the trial court imposed in its 

August 30, 2011 “NUNC PRO TUNC SENTENCING ENTRY.” However, the trial court 

issued this entry pursuant to our limited remand order in an earlier appeal Adams filed. 

In State v. Adams, 4th Dist. No. 10CA3391, 2012-Ohio-255 (Adams II), we affirmed the 

sentence imposed in this entry. Because Adams’ arguments were or could have been 

raised in Adams II, they are barred by the doctrine of res judicata. Accordingly, we 

affirm the trial court’s judgment. 

I. Facts

{¶2} A jury convicted Adams of one count of murder, one count of aggravated 

burglary, and two counts of kidnapping, all with firearm specifications. We vacated 

Adams’ original sentence because the trial court relied on R.C. 2929.14(B) and (E)(4) 

when it imposed greater-than-minimum and consecutive prison terms, and the Supreme 
Scioto App. No. 11CA3452 2 

Court of Ohio declared those statutory provisions unconstitutional in State v. Foster, 109 

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. State v. Adams, 4th Dist. Nos. 

04CA2959 & 05CA2986, 2009-Ohio-6491, ¶ 11 (Adams I). After the court resentenced 

Adams on remand, he appealed from the September 23, 2010 resentencing entry. He 

argued that his sentence was clearly and convincingly contrary to law and that the court 

abused its discretion in choosing it because the court again relied on an unconstitutional 

statute and made an incorrect finding regarding his criminal past. Adams II, supra, at ¶ 

1. However, we concluded that the portion of the resentencing entry Adams objected to 

did not reflect the court’s actual findings at the resentencing hearing and was included 

in the entry by mistake. Id. Therefore, we issued a second remand directing the trial 

court to file a nunc pro tunc entry. Id. The court did so under Crim.R. 36 and eliminated 

the language from the resentencing entry that had been included by a scrivener’s error. 

Id. Because the nunc pro tunc entry complied with our original remand order and the 

law, we affirmed Adams’ new sentence. Id. Before we released our final decision in 

Adams II, Adams filed a separate notice of appeal from the nunc pro tunc entry. 

II. Assignment of Error 

{¶3} Adams assigns one error for our review:

THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT. 

[Transcript marked “July 19, 2004” at pp. 6-9; Judgment Entry filed 

7/28/04 at pp. 4-7; Transcript of July 7, 2010 hearing at p. 3; Judgment 

Entry filed 9/23/10, Nunc Pro Tunc Sentencing Entry filed 8/30/11] 

III. Res Judicata 

{¶4} “The doctrine of res judicata bars an issue from being raised in a 

subsequent appeal if it was also raised, and disposed of on the merits, in a previous 

appeal. Moreover, an argument that could have been raised on a previous appeal, but 
Scioto App. No. 11CA3452 3 

was not, is also barred by the doctrine of res judicata.” State v. Abernathy, 4th Dist. No. 

10CA3341, 2011-Ohio-1056, ¶ 14. “[T]he doctrine serves to preclude a defendant who 

has had his day in court from seeking a second on that same issue. In so doing, res 

judicata promotes the principles of finality and judicial economy by preventing endless 

relitigation of an issue on which a defendant has already received a full and fair 

opportunity to be heard.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 

N.E.2d 824, ¶ 18. 

{¶5} In his sole assignment of error, Adams contends that his sentence is 

clearly and convincingly contrary to law and that the trial court abused its discretion in 

imposing it. Adams complains about the same statements in the September 23, 2010 

resentencing entry which he complained about in Adams II. He argues that the court 

could not simply delete the statements through a nunc pro tunc entry because the court 

in fact made the objectionable findings, i.e., the inclusion of the statements in the 

resentencing entry was not merely a clerical mistake. However, we already addressed 

this issue in Adams II and determined that the court could issue a nunc pro tunc entry 

omitting the statements because they did not reflect the court’s actual findings at the 

resentencing hearing and were therefore included in the September entry by mistake. 

Adams II, supra, at ¶ 1. Res judicata precludes Adams from challenging this holding in 

the present appeal. 

{¶6} Adams also argues that the trial court made findings “not based upon 

evidence presented or jury decision,” making his sentence “unduly harsh and invalid 

under the law which existed pre-Foster.” (Appellant’s Br. 11). He also complains that 

prior to sentencing him, the trial court never acknowledged that it was aware of the fact 
Scioto App. No. 11CA3452 4 

that the jury found he released the kidnapping victims unharmed. (Appellant’s Br. 11). 

However, he could have raised these arguments in Adams II, so res judicata bars him 

from raising them now. 

{¶7} Adams also argues that he is entitled to retroactive application of House 

Bill 86’s presumption in favor of concurrent sentences due to the sentencing errors he 

identified in this appeal. However, we already concluded that the arguments Adams 

made in this appeal about sentencing errors are barred by res judicata. Because we 

found no errors in his new sentence and affirmed it in Adams II, his argument for 

retroactive application of House Bill 86 must fail. 

{¶8} Accordingly, we overrule the sole assignment of error and affirm the trial 

court’s judgment. 

JUDGMENT AFFIRMED. 
Scioto App. No. 11CA3452 5 

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

The Court finds there were reasonable grounds for this appeal. 

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

County Court of Common Pleas 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. Exceptions. 

Kline, J. & McFarland, J.: Concur in Judgment and Opinion. 

For the Court 

BY: ____________________________ 

 William H. Harsha, 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.