[Cite as State v. Crum, 2017-Ohio-9000.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Patricia A. Delaney, P.J. 

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

SHANE CRUM : Case No. 2017CA00129 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 1996CR1057 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: December 11, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO SHANE CRUM, Pro Se 

Prosecuting Attorney Inmate No. 334-540 

RONALD MARK CALDWELL Marion Correctional Institution 

Assistant Prosecuting Attorney P.O. Box 57 

110 Central Plaza South, Suite 510 Marion, OH 43301 

Canton, OH 44702-1413 
Stark County, Case No. 2017CA00129 2 

Wise, Earle, J. 

{¶ 1} Defendant-Appellant, Shane Crum, appeals the June 14, 2017 judgment 

entry of the Court of Common Pleas of Stark County, Ohio, denying his motion filed 

June 8, 2017. Plaintiff-Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} On March 27, 1997, a jury convicted appellant of one count of rape in 

violation of R.C. 2903.02, one count of felonious sexual penetration in violation of R.C. 

2907.12, and one count of gross sexual imposition in violation of R.C. 2907.05. By 

judgment entry filed March 31, 1997, the trial court sentenced appellant on each count, 

to be served consecutively, culminating in an aggregate term of life in prison. 

{¶ 3} Appellant appealed his conviction and sentence which this court affirmed 

on October 26, 1998. State v. Crum, 5th Dist. Stark No. 97-CA-0134, 1998 WL 818055 

(Oct. 26, 1998), appeal not accepted, 85 Ohio St.3d 1406, 706 N.E.2d 788. One of the 

assignments of error raised the issue of allied offenses and merger under R.C. 2941.25. 

{¶ 4} On February 19, 2004, appellant filed a petition to vacate or set aside 

sentence pursuant to R.C. 2953.21, claiming newly discovered evidence in the form of 

undisclosed witness statements. By judgment entry filed December 16, 2004, the trial 

court denied the petition. 

{¶ 5} Appellant appealed the denial which this court affirmed on December 27, 

2005. State v. Crum, 5th Dist. Stark No. 2005CA00024, 2005-Ohio-7037, appeal not 

accepted, 109 Ohio St.3d 1457, 2006-Ohio-2226, 847 N.E.2d 6. 

{¶ 6} On June 8, 2017, appellant filed a motion to correct void sentence for the 

court's failure to comport with the statutory requirements of R.C. 2941.25, claiming the 
Stark County, Case No. 2017CA00129 3 

trial court erred in failing to conduct a sentencing hearing on the merger issue. By 

judgment entry filed June 14, 2017, the trial court denied the motion. 

{¶ 7} Appellant filed an appeal and this matter is now before this court for 

consideration. Assignments of error are as follows: 

I 

{¶ 8} "THE TRIAL COURT ERRED IN SIMPLY DENYING THIS APPELLANT'S 

MOTION WITHOUT ANY REASONED DECISION OR FINDINGS OF FACT AND 

CONCLUSIONS OF LAW VIOLATING HIS CONSTITUTIONAL RIGHTS TO THE DUE 

PROCESS OF LAW AND A FAIR TRIAL UNDER THE 5TH AND 14TH AMENDMENTS 

OF THE US CONSTITUTION AND THE EQUIVALENT ARTICLES AND SECTIONS 

OF THE OHIO CONSTITUTION." 

II 

{¶ 9} "THE TRIAL COURT INITIALLY ERRED BY IMPOSING CONSECUTIVE 

SENTENCES FOR ALLIED OFFENSES OF SIMILAR IMPORT AND AS SUCH THE 

SENTENCE IMPOSED IN THIS CASE DOES NOT COMPORT WITH THE 

STATUTORY REQUIREMENTS OF O.R.C. 2941.25 SINCE THE STATE RELIED ON 

THE SAME CONDUCT WITH THE SAME ALLEGED VICTIM ALL IN THE SAME TIME 

FRAME TO SUPPORT ALL THE CHARGES AGAINST THIS APPELLANT. ANY 

SENTENCE IMPOSED THAT IS NOT STATUTORILY COMPLIANT IS VOID AND 

MUST BE VACATED OR CORRECTED OR THIS APPELLANT'S CONSTITUTIONAL 

RIGHT TO THE DUE PROCESS OF LAW AND A FAIR TRIAL UNDER THE 5TH AND 

14TH AMENDMENTS AND THE EQUIVALENT ARTICLES AND SECTIONS OF THE 

OHIO CONSTITUTION ARE VIOLATED." 
Stark County, Case No. 2017CA00129 4 

III 

{¶ 10} "THE TRIAL COURT ERRED IN NOT CONDUCTING A MERGER 

HEARING AT SENTENCING OR WHEN THE ALLIED OFFENSE MOTION WAS 

FILED AS THE FACIAL QUESTION OF MERGER IS PLAIN AND MUST BE 

ADDRESSED TO ENSURE STATUTORY COMPLIANCE AND THE FAILURE TO DO 

SO VIOLATED THIS APPELLANT'S CONSTITUTIONAL RIGHTS UNDER THE 5TH 

AND 14TH AMENDMENTS OF THE US CONSTITUTION AND THE EQUIVALENT 

ARTICLES AND SECTIONS OF THE OHIO CONSTITUTION." 

I, II, III 

{¶ 11} In his three assignments of error, appellant claims the trial court erred in 

denying his motion without any reasoned decision or findings of fact and conclusions of 

law, challenges his consecutive sentences under R.C. 2941.25, and claims the trial 

court erred in not conducting a merger hearing. We disagree. 

{¶ 12} In his 1998 direct appeal at Assignment of Error IV, appellant challenged 

the following: 

 AS THE EVIDENCE AT TRIAL RELIED UPON THE SAME 

CONDUCT TO SUPPORT THE OFFENSES OF RAPE, GROSS SEXUAL 

IMPOSITION, AND FELONIOUS SEXUAL PENETRATION AND THE 

STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE 

SEPARATE AMICUS FOR EACH CHARGE, MR. CRUM SHOULD NOT 

BE CONVICTED AND SENTENCED FOR ALL SUCH OFFENSES 

PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS TO 
Stark County, Case No. 2017CA00129 5 

THE UNITED STATES CONSTITUTION; ARTICLE I, SECTION 10 OF 

THE OHIO STATE CONSTITUTION AND SECTION 2941.25 OF THE 

OHIO REVISED CODE. 

{¶ 13} In overruling the assignment, this court stated the following: 

 Upon review of the trial record, we find the evidence presented at 

trial provides a basis for reasonable minds to conclude appellant engaged 

in multiple acts which could be separately classified as felonious sexual 

penetration, rape, and gross sexual imposition. These crimes are defined 

in the jury instructions given by the trial court set forth supra. The trial 

court instructed the jury to consider the charges and the evidence 

supporting each charge separately. 3Tr. at 69. This court cannot 

substitute our judgment for that of the jury. 

State v. Crum, 5th Dist. Stark No. 97-CA-0134, 1998 WL 818055, *10 (Oct. 26, 1998). 

{¶ 14} In State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 26, the 

Supreme Court of Ohio stated the following: 

 Our decisions in Mosely [v. Echols, 62 Ohio St.3d 75, 578 N.E.2d 

454 (1991)], Holdcroft [State v., 137 Ohio St.3d 526, 2013-Ohio-5014, 1 

N.E.3d 382], and Rogers [State v., 143 Ohio St.3d 385, 2015-Ohio-2459, 
Stark County, Case No. 2017CA00129 6 

38 N.E.3d 860] establish that when a trial court finds that convictions are 

not allied offenses of similar import, or when it fails to make any finding 

regarding whether the offenses are allied, imposing a separate sentence 

for each offense is not contrary to law and any error must be asserted in a 

timely appeal or it will be barred by principles of res judicata. See 

Holdcroft at ¶ 8-9. 

{¶ 15} In the case sub judice, the trial court found the offenses were not allied 

offenses and sentenced appellant to separate sentences. Appellant timely appealed 

and assigned the issue as error. This court disagreed with appellant's arguments and 

overruled the assignment. The Supreme Court of Ohio declined to accept the appeal 

for review. State v. Crum, 85 Ohio St.3d 1406, 706 N.E.2d 788. As a result, appellant 

is barred from relitigating the issue under the doctrine of res judicata. As stated by the 

Supreme Court of Ohio in State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), 

paragraphs eight and nine of the syllabus, the doctrine of res judicata is applicable to 

petitions for postconviction relief. The Perry court explained the doctrine at 180-181 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 been raised by the defendant 
Stark County, Case No. 2017CA00129 7 

at the trial which resulted in that judgment of conviction or on an appeal 

from that judgment. 

{¶ 16} Although appellant argued in his June 8, 2017 motion that the motion was 

not a petition for postconviction relief, "[w]here 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 postconviction relief as defined in R.C. 2953.21." State v. Reynolds, 79 Ohio 

St.3d 158, 679 N.E.2d 1131, syllabus. 

{¶ 17} In addition, appellant's filing did not meet the requirements of R.C. 

2953.23(A)(1) as it was untimely under R.C. 2953.21(A)(2) and was a successive 

petition. 

{¶ 18} Upon review, we find the trial court did not err in summarily denying 

appellant's "motion." 

 
Stark County, Case No. 2017CA00129 8 

{¶ 19} The judgment of the Court of Common Pleas of Stark County, Ohio is 

hereby affirmed. 

By Wise, Earle, J. 

Delaney, P.J. and 

Baldwin, J. concur. 

 

EEW/db 121