[Cite as State v. Church, 2015-Ohio-4331.]

COURT OF APPEALS 

MORGAN COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. Sheila G. Farmer, P.J. 

 Plaintiff-Appellee : Hon. John W. Wise, J. 

 : Hon. Patricia A. Delaney, J. 

-vs- : 

 : Case No. 15AP0005 

 : 

JACKIE CHURCH : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Morgan County Court 

of Common Pleas, Case No. 02-CR0065 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: October 16, 2015 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

MARK J. HOWDYSHELL JACKIE CHURCH, PRO SE 

Morgan County Prosecutor #456-724 

19 East Main St. Allen Correctional Institution 

McConnelsville, OH 43756 P.O. Box 4501 

 Lima, OH 45802-4501 

 
Morgan County, Case No. 15AP0005 2 

Delaney, J. 

{¶1} Defendant-Appellant Jackie Church appeals the April 17, 2015 judgment 

entry of the Morgan County Court of Common Pleas. 

FACTS AND PROCEDURAL HISTORY 

{¶2} On October 4, 2002, the Morgan County Grand Jury indicted Church on 

one count of attempted aggravated murder, in violation of R.C. 2903.01; and one count 

of felonious assault, in violation of R.C. 2903.11, both with firearm specifications; and 

one count of menacing by stalking, in violation of R.C. 2903.211. 

{¶3} Church pleaded guilty to attempted murder and felonious assault and 

attendant firearm specifications. By sentencing entry filed September 23, 2003, the trial 

court sentenced Church to an aggregate term of 19 years in prison. Upon remand by 

this Court for transcript irregularities, the trial court resentenced Church on November 4, 

2004, to the same 19–year term. 

{¶4} This Court affirmed in part and reversed in part the trial court's November 

4, 2004 re-sentencing entry, and remanded the matter for further specification as to the 

amount of restitution. State v. Church, 161 Ohio App.3d 589, 2005-Ohio-2984, 831 

N.E.2d 490, ¶ 20 (5th Dist.). 

{¶5} On November 2, 2007, Church filed a pro se motion titled, “Motion for Resentencing on Void Judgment and/or Appearance of Lack of Final Appealable Order.” 

The State filed a timely response in opposition. The trial court summarily denied 

Church's motion for re-sentencing without an oral hearing on December 12, 2007. This 

Court affirmed the trial court's decision. State v. Church, 5th Dist. Morgan No. 2008–

CA–7, 2009–Ohio–2207. 
Morgan County, Case No. 15AP0005 3 

{¶6} On November 25, 2008, Church moved the trial court to permit him to 

withdraw his guilty plea pursuant to Crim. R. 32.1. The trial court overruled the motion 

without oral hearing. This Court affirmed the decision of the trial court. State v. Church,

5th Dist. Morgan No. 2008–CA–0001, 2008–Ohio–1917. 

{¶7} On July 30, 2010, Church filed a Motion to Correct, Modify, or Vacate 

Sentence. Church argued his conviction for felonious assault should be vacated 

because at the time of the offenses he was taking the prescription medication, Paxil. 

The trial court denied Church's motion on January 4, 2012. Church appealed the 

decision and we affirmed in State v. Church, 5th Dist. Morgan No. 12-CA-2, 2012-Ohio3481. 

{¶8} Church filed a Motion for Resentencing/Sentence Corrections and/or in 

the Alternative Motion to Vacate Conviction/New Trial on March 11, 2015. Based on 

Church's arguments within the motion, the trial court considered Church's motion to be 

a petition for post-conviction relief. The trial court denied the petition finding that Church 

had previously raised his arguments on appeal and the issues were barred by res 

judicata. 

{¶9} It is from this decision Church now appeals. 

ASSIGNMENTS OF ERROR 

{¶10} Church raises two Assignments of Error: 

{¶11} "I. The trial court abused its discretion and committed a manifest injustice 

and a Reversible Error by its violation of Appellant's Constitutional Right of Equal 

Protection of the law, which is secured by the Due Process Clause of the Fifth and 

Fourteenth Amendment to the United States Constitution by allowing the prosecution to 
Morgan County, Case No. 15AP0005 4 

file an untimely reply to Appellant's Motion for Resentencing, Sentence Correction 

and/or in the alternative a Motion to Vacate Conviction/New Trial. 

{¶12} "II. The trial court abused it's [sic] discretion and committed reversable 

[sic] error by the court a violation of Appellant's Constitutional Rights of Due Process set 

forth in the Fifth, Sixth, and Fourteenth Amendment of the United States Constitution." 

ANALYSIS 

Res Judicata Bars Church's Argument 

{¶13} We will first analyze Church's Second Assignment of Error because it is 

dispositive of this appeal. Church argues his constitutional rights were violated when the 

trial court ordered Church to serve consecutive sentences for attempted murder and 

felonious assault. 

{¶14} Church's argument is barred by the doctrine of res judicata. Under the 

doctrine of res judicata, “a valid, final judgment rendered upon the merits bars all 

subsequent actions based upon any claim arising out of the transaction or occurrence 

that was the subject matter of the previous action.” State v. Jennison, 5th Dist. 

Coshocton No. 2015-CA-0003, 2015-Ohio-3204, ¶ 9 quoting State v. Patrick, 8th Dist. 

Cuyahoga No. 99418, 2013–Ohio–5020, ¶ 7, citing Grava v. Parkman Twp., 73 Ohio 

St.3d 379, 382, 653 N.E.2d 226 (1995). When a petitioner seeks post-conviction relief 

on an issue that was raised or could have been raised on direct appeal, the petition is 

properly denied by the application of the doctrine of res judicata. Id. citing State v. 

Tucker, 8th Dist. Cuyahoga No. 84595, 2005–Ohio–109, ¶ 11, citing State v. Edwards,

8th Dist. Cuyahoga No. 73915, 1999 Ohio App. LEXIS 894, 1999 WL 135274 (Mar. 11, 

1999). 
Morgan County, Case No. 15AP0005 5 

{¶15} Church argued in the direct appeal of his sentence that the trial court 

erred in ordering consecutive sentences for attempted murder and felonious assault. 

We affirmed Church's sentence and found the offenses of attempted murder and 

felonious assault were not allied offenses of similar import. State v. Church, 161 Ohio 

App.3d 589, 2005-Ohio-2984, 831 N.E.2d 490, ¶ 20 (5th Dist.). 

{¶16} The trial court did not abuse its discretion in denying the petition for postconviction relief when it found the arguments raised by Church as to alleged sentencing 

errors were previously raised and addressed on appeal. 

{¶17} Church's second Assignment of Error is overruled. 

The State's Untimely Memorandum Contra to Church's Petition 

{¶18} Church argues in his first Assignment of Error that the trial court erred in 

allowing the State to file an untimely memorandum contra to his petition for postconviction relief. 

{¶19} The State is not mandated to respond to a petition for post-conviction 

relief. State v. Jones, 7th Dist. Mahoning No. 13 MA 53, 2014-Ohio-2592, ¶ 13. R.C. 

2953.21(D) states, "[w]ithin ten days after the docketing of the petition, or within any 

further time that the court may fix for good cause shown, the prosecuting attorney shall 

respond by answer or motion. Within twenty days from the date the issues are raised, 

either party may move for summary judgment. The right to summary judgment shall 

appear on the face of the record." 

{¶20} Church filed his petition for post-conviction relief on March 11, 2015. The 

State filed its memorandum contra on April 14, 2015. While the State's response was 
Morgan County, Case No. 15AP0005 6 

filed outside of the time-frame established by R.C. 2953.21(D), we find the error to be 

harmless based on our disposition of the second Assignment of Error. 

{¶21} Church's first Assignment of Error is overruled. 

CONCLUSION 

{¶22} The judgment of the Morgan County Court of Common Pleas is affirmed. 

By: Delaney, J., 

Farmer, P.J. and 

Wise, J., concur.