[Cite as State v. Smith, 2012-Ohio-1891.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

MARION COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 9-11-36 

 v. 

MARK E. SMITH, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Marion County Common Pleas Court 

Trial Court No. 04-CR-5213 

Sentence Vacated and Cause Remanded 

Date of Decision: April 30, 2012 

 

APPEARANCES: 

J. C. Ratliff for Appellant 

Denise M. Martin for Appellee 
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PRESTON, J. 

{¶1} Defendant-appellant, Mark E. Smith (hereinafter “Smith”), appeals the 

Marion County Court of Common Pleas’ judgment entry of resentencing entered 

following a remand from the Sixth Circuit Court of Appeals. For the reasons that 

follow, we reverse. 

{¶2} On October 19, 2004, at approximately 1:20 p.m., the Marion 

Community Credit Union located at 810 Kenton Avenue, Marion, Ohio 43302 was 

robbed. No customers were present during the robbery; however, three employees 

were present when the robber entered the Credit Union and ordered them to get on 

the floor. The robber took a total of $9,480.00 from one of the tellers at the Credit 

Union. 

{¶3} On December 22, 2004 and following an investigation into the 

Community Credit Union robbery, the Marion County Grand Jury indicted Smith 

on Count One of aggravated robbery in violation of R.C. 2911.01(A)(1), a first 

degree felony; and Counts Two, Three, and Four of kidnapping, violations of R.C. 

2905.01(A)(2) and second degree felonies. (Doc. No. 1). All four counts included 

three-year firearm specifications pursuant to R.C. 2941.145 and 2929.14(D). (Id.). 

{¶4} On April 7, 2005, a jury trial commenced. On April 11, 2005, the jury 

found Smith guilty on all counts but acquitted him on all four firearm 

specifications. (Doc. Nos. 182-185). 
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{¶5} On June 6, 2005, the trial court sentenced Smith to nine years on 

Count One (aggravated robbery) and four years on each of Counts Two, Three, 

and Four (kidnapping). (June 9, 2006 JE, Doc. No. 215). The trial court ordered 

that the terms imposed on Counts Two, Three, and Four run concurrently to each 

other but consecutive to the term imposed in Count One for a thirteen-year 

aggregate sentence. (Id.). 

{¶6} On July 13, 2005, Smith filed a notice of appeal. (Doc. No. 220). 

{¶7} On October 24, 2005, Smith filed a pro se petition for post-conviction 

relief pursuant to R.C. 2953.21 and 2953.23 in the trial court. (Doc. No. 249). 

Smith challenged his convictions and sentence, asserting ineffective assistance of 

trial counsel due to counsel’s failure to object to his sentence, and that his sentence 

violated his Sixth Amendment right to a jury trial as explained in United States v. 

Booker, 543 U.S. 220, 125 S.Ct. 738 (2005), Blakely v. Washington, 542 U.S. 296, 

124 S.Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 

(2000). On November 30, 2005, the trial court dismissed Smith’s petition without 

reviewing the merits. (Doc. No. 253). 

{¶8} On February 21, 2006, this Court affirmed Smith’s conviction and 

sentence, finding that his convictions were supported by sufficient evidence and 

not against the manifest weight of the evidence. State v. Smith, 3d Dist. No. 9-05-
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22, 2006-Ohio-735. On June 21, 2006, the Ohio Supreme Court declined 

discretionary review. State v. Smith, 109 Ohio St.3d 1507, 2006-Ohio-2998. 

{¶9} On March 16, 2007 and after exhausting his state remedies, Smith 

filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the United 

States District Court for the Northern District of Ohio. Smith v. Moore, N.D. Ohio 

No. 3:07CV1121 (July 30, 2008) (Magistrate’s Report & Recommendation). In his 

habeas petition, Smith raised three grounds for relief: (1) that he was deprived of 

due process of law by a conviction not supported by sufficient evidence; (2) that 

he was deprived effective assistance of appellate counsel due to appellate 

counsel’s failure to argue that his sentence violated the Sixth Amendment to the 

United States Constitution; and (3) that he was denied due process and his Sixth 

Amendment right to a jury trial when the state trial court enhanced his sentence 

based on judicially-found facts. Id. 

{¶10} The district court referred Smith’s habeas petition to a magistrate for 

a report and recommendation (“R & R”). In his R & R, the magistrate found that 

Smith’s claims were not procedurally barred and were properly before the district 

court. Id. The magistrate found Smith’s sufficiency of the evidence and ineffective 

assistance of appellate counsel claims meritless. Id. However, the magistrate found 

that Smith’s Sixth Amendment claim was meritorious as the sentencing judge 

enhanced Smith’s sentence based on judicially-found facts in violation of Blakely 
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v. Washington. Id. The district court declined to adopt this portion of the R & R, 

and denied Smith’s petition altogether, finding that any Sixth Amendment 

violation in his sentence was harmless error. Smith v. Moore, N.D. Ohio No. 

3:07CV1121 (Aug. 19, 2008). However, the district court granted Smith a 

certificate of appealability on the Sixth Amendment issue. Id. 

{¶11} On February 4, 2011, the Sixth Circuit Court of Appeals reversed, 

concluding that judicial fact-finding had deprived Smith of his Sixth Amendment 

right to a trial by jury in violation of Blakely, 542 U.S. 296. Smith v. Moore, 415 

Fed.Appx. 624, 626-627 (6th Cir. 2011). The Sixth Circuit granted Smith’s writ of 

habeas corpus and ordered that Smith be released from prison unless Ohio 

resentenced him within 180 days in accordance with its opinion. Id. 

{¶12} On March 15, 2011, Smith filed a pro se resentencing memorandum 

and a motion for appointed counsel with the trial court in light of the Sixth 

Circuit’s decision. (Doc. Nos. 255-256). In his resentencing memorandum, Smith 

argued, in pertinent part, that his kidnapping convictions were allied offenses of 

similar import to his aggravated robbery conviction and should, therefore, be 

merged for resentencing. (Doc. No. 255). On March 18, 2011, the State responded 

that it was not opposed to the trial court appointing Smith counsel for the 

resentencing hearing. (Doc. No. 258). The trial court ultimately appointed J.C. 

Ratliff, Esq. to represent Smith for the resentencing hearing. (Doc. No. 264). 
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{¶13} On March 24, 2011, the State filed a motion for a resentencing 

hearing in light of the Sixth Circuit’s decision. (Doc. No. 259). 

{¶14} On July 14, 2011, the State filed a resentencing memorandum. (Doc. 

No. 271). In its memorandum, the State argued that Smith failed to preserve the 

allied offense argument since he never raised it on direct appeal, and, regardless, a 

separate animus existed for the kidnappings; to wit: concealment of Smith’s 

identity, facilitation of the crime, and Smith’s flight thereafter. (Id.). 

{¶15} On July 15, 2011, the trial court resentenced Smith to ten years on 

Count One (aggravated robbery) and three years on each of Counts Two, Three, 

and Four (kidnapping). (July 26, 2011 JE, Doc. No. 272); (July 15, 2011 Tr. at 

17). The trial court concluded that Count Three was an allied offense of similar 

import to Count One and should, therefore, be merged with Count One for 

purposes of sentencing. (Id.); (Id.). The trial court further ordered that the terms on 

Counts Two and Four (kidnapping) be served concurrently with each other but 

consecutively to Count One for an aggregate sentence of 13 years. (Id.); (Id.). 

{¶16} On August 19, 2011, Smith filed a notice of appeal. (Doc. No. 277). 

Smith now appeals raising two assignments of error for our review. 

ASSIGNMENT OF ERROR NO. I 

THE TRIAL COURT ERRED WHEN IT SENTENCED 

APPELLANT TO SEPARATE AND CONSECUTIVE TERMS 

OF IMPRISONMENT ON AGGRAVATED ROBBERY AND 

KIDNAPPING COUNTS AND CONCURRENT TERMS OF 
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IMPRISONMENT ON TWO (2) KIDNAPPING COUNTS 

WHEN THE OFFENSES CONSTITUTED ALLIED 

OFFENSES OF SIMILAR IMPORT AND VIOLATE 

PROTECTIONS AGAINST DOUBLE JEOPARDY. 

ASSIGNMENT OF ERROR NO. II 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

INCREASED THE SENTENCE ON AGGRAVATED 

ROBBERY. 

{¶17} In his first assignment of error, Smith argues that the trial court erred 

by sentencing him to separate terms of imprisonment on Counts Two and Four of 

kidnapping since they were allied offenses of similar import with Count One of 

aggravated robbery. In his second assignment of error, Smith argues that the trial 

court abused its discretion when it increased his aggravated robbery sentence from 

nine years to ten years upon resentencing. 

{¶18} Before addressing the merits of Smith’s assignments of error, this 

Court should discuss a dispositive procedural issue Smith addressed in his 

appellate brief—res judicata. (Appellant’s Brief at 9). Although the State did not 

address res judicata in its appellate brief, we may consider legal issues not 

specifically raised by the parties if a sufficient basis in the record exists for 

determining them. Hungler v. Cincinnati, 25 Ohio St.3d 338, 341-342 (1986); 

State v. Peagler, 76 Ohio St.3d 496, 499 (1996). There is a sufficient basis in the 

record sub judice to determine whether res judicata applies. To begin with, the 

State argued res judicata both in its resentencing memorandum and at the 
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resentencing hearing. (Doc. No. 271); (July 15, 2011 Tr. at 7, 15). The trial court 

affirmatively considered and rejected this argument at the resentencing hearing. 

(July 15, 2011 Tr. at 17). Finally, and significantly, this Court already determined 

that Smith’s convictions were not allied offenses of similar import in Smith’s 

direct appeal. Smith, 2006-Ohio-735, at ¶ 6. 

{¶19} “The doctrine of res judicata establishes that ‘a final judgment of 

conviction bars a convicted defendant who was represented by counsel 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 at the trial, which resulted in that judgment of conviction, 

or on an appeal from that judgment.’” State v. Wilson, 129 Ohio St.3d 214, 2011-

Ohio-2669, ¶ 30, quoting State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine 

of the syllabus. “[R]es 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, ¶ 18, citing State ex rel. Willys–Overland Co. v. 

Clark, 112 Ohio St. 263, 268 (1925). 

{¶20} Smith was originally sentenced on June 6, 2005. On February 21, 

2006, we affirmed Smith’s conviction and sentence and concluded that Smith’s 

offenses were not allied offenses of similar import. Smith, 2006-Ohio-735, at ¶ 6. 
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The Ohio Supreme Court declined discretionary review of Smith’s appeal on June 

21, 2006. Smith, 109 Ohio St.3d 1507, 2006-Ohio-2998. Consequently, Smith’s 

aggravated robbery and kidnapping convictions were final on June 21, 2006, at the 

latest. 

{¶21} Thereafter, in March 2007, Smith filed a petition for writ of habeas 

corpus in the federal district court, arguing, in relevant part, that the Ohio trial 

court’s sentence violated his Sixth Amendment right to a jury trial as explained in 

Booker, 543 U.S. 220, Blakely, 542 U.S. 296, and Apprendi, 530 U.S. 466. 

Ultimately, the Sixth Circuit agreed with Smith and ordered that he be released 

from custody unless the State resentenced him within 180 days. Smith v. Moore, 

415 Fed.Appx. 624, 631. 

{¶22} To comply with the Sixth Circuit’s opinion, the Ohio trial court was 

required to resentence Smith without making judicial findings, consistent with 

Blakely. In other words, the trial court was required to hold a Foster resentencing 

hearing. 109 Ohio St.3d 1, 2006-Ohio-856. Although the trial court was required 

to vacate Smith’s original sentence for purposes of resentencing Smith under 

Foster, Smith’s convictions remained final. 2006-Ohio-856, at ¶ 103-104. Trial 

courts determine whether offenses are allied offenses under R.C. 2941.25(A) prior 

to sentencing by examining the underlying convictions (elements of the offenses) 

and the facts of the case. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 
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47; State v. Mangrum, 86 Ohio App.3d 156, 158 (12th Dist. 1993). If the trial 

court determines that offenses are allied, the State elects which offense to pursue 

for purposes of sentencing; and then, the trial court merges the allied offenses into 

the offense the State elected to pursue for purposes of sentencing. State v. 

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 24, citing State v. Brown, 119 Ohio 

St.3d 447, 2008-Ohio-4569, ¶ 41. Consequently, trial courts may not merge allied 

offenses at Foster resentencing hearings since that determination requires 

examination of the offender’s convictions, which are already final. State v. Martin, 

2nd Dist. No. 21697, 2007-Ohio-3585; State v. Dillard, 7th Dist. No. 08 JE 35, 

2010-Ohio-1407. 

{¶23} Permitting trial courts to merge allied offenses at Foster resentencing 

hearings—created for the limited purpose of fixing Blakely errors—undermines 

the principles of finality underpinning the doctrine of res judicata. Saxon, 2006-

Ohio-1245, at ¶ 18. On the other hand, recognizing the finality of Smith’s 

convictions apart from his sentence is consistent with the Ohio Supreme Court’s 

recent decision in State v. Fischer, governing post-release control resentencing 

hearings. 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 38-40. 

{¶24} Aside from the aforementioned, Smith’s allied offense argument is 

barred by res judicata because this Court already decided this issue in his direct 

appeal. Smith, 2006-Ohio-735, at ¶ 6. Smith is not permitted to re-litigate this 
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issue following his Foster resentencing hearing, nor is Smith permitted to use 

habeas corpus proceedings to obtain successive appellate review of this issue. 

State v. Johnson, 174 Ohio App.3d 130, 2007-Ohio-6512 (1st Dist.); State v. Hill, 

5th Dist. No. CT11-0020, 2011-Ohio-3644; State v. McLeod, 7th Dist. No. 07-JE17, 2008-Ohio-3405, ¶ 16; State v. Fernbach, 12th Dist. Nos. CA2006-11-130, 

CA2006-11-131, 2008-Ohio-5670, ¶ 19; Shie v. State, 123 Ohio St.3d 89, 2009-

Ohio-4079 (habeas corpus may not be used to obtain successive appellate review). 

See also Smith v. Voories, 119 Ohio St.3d 345, 2008-Ohio-4479, ¶ 10, citing 

Mosley v. Echols, 62 Ohio St.3d 75 (1991) (allied offense argument is not 

jurisdictional and, therefore, subject to res judicata). 

{¶25} Finally, the application of State v. Johnson at Smith’s resentencing 

hearing was erroneous as a matter of law, because “[a] new judicial ruling may be 

applied only to cases that are pending on the announcement date.” Ali v. State, 104 

Ohio St.3d 328, 2004-Ohio-6592, ¶ 6, citing State v. Evans, 32 Ohio St.2d 185, 

186 (1972). “The new judicial ruling may not be applied retroactively to a 

conviction that has become final, i.e., where the accused has exhausted all of his 

appellate remedies.” Id., citing Evans at 186; State v. Lynn, 5 Ohio St.2d 106, 108 

(1966). Smith’s conviction was final after the Ohio Supreme Court denied review 

on June 21, 2006; State v. Johnson was not released until December 29, 2010. 
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Consequently, the trial court erred by applying State v. Johnson at the resentencing 

hearing. Hill, 2011-Ohio-3644, at ¶ 23. 

{¶26} In his brief, Smith argues that the law-of-the-case doctrine is 

inapplicable here since State v. Johnson is an “intervening decision.” (Appellant’s 

Brief at 9). This argument lacks merit. “The law-of-the-case doctrine holds that 

‘the decision of a reviewing court in a case remains the law of that case on the 

legal questions involved for all subsequent proceedings in the case at both the trial 

and reviewing levels.’” State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, ¶ 30, 

quoting Nolan v. Nolan, 11 Ohio St.3d 1, 3 (1984). “Res judicata is a substantive 

rule of law that applies to a final judgment, whereas the law-of-the-case doctrine is 

a rule of practice analogous to estoppel.” Hopkins v. Dyer, 104 Ohio St.3d 461, 

2004-Ohio-6769, ¶ 22, citing Gohman v. St. Bernard, 111 Ohio St. 726, 730 

(1924); Hart Steel Co. v. RR. Supply Co., 244 U.S. 294, 299, 37 S.Ct. 506 (1917). 

As the Court in People v. Evans further explained: 

* * * law of the case addresses the potentially preclusive effect of 

judicial determinations made in the course of a single litigation 

before final judgment. [Citations omitted]. Res judicata and 

collateral estoppel generally deal with preclusion after judgment: res 

judicata precludes a party from asserting a claim that was litigated in 

a prior action [citations omitted] while collateral estoppel precludes 
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relitigating an issue decided in a prior action [citation omitted]. 

Accordingly, law of the case has been aptly characterized as ‘a kind 

of intra-action res judicata[.]’ [Citation omitted]. 94 N.Y.2d 499, 

502, 727 N.E.2d 1232 (2000) (emphasis in original). 

See also 20 American Jurisprudence 2d, Courts, Section 130 (2012); 18B Federal 

Practice and Procedure Jurisprudence 2d, Law of the Case, Section 4478 (2012). 

Since Smith’s convictions were final judgments subject to res judicata, the law-ofthe-case doctrine does not have application here. Dyer, 2004-Ohio-6769, at ¶ 22; 

Evans, 94 N.Y.2d at 502; State v. Greenleaf, 9th Dist. No. 25848, 2012-Ohio-686, 

¶ 15 (Belfance, J., dissenting). 

{¶27} For all the aforementioned reasons, Smith’s convictions were final 

and subject to res judicata; and therefore, the trial court did not err by refusing to 

merge Smith’s kidnapping convictions on Counts Two and Four into his 

aggravated robbery conviction. Nevertheless, since Smith’s kidnapping conviction 

on Count Three was also final and subject to res judicata, the trial court erred as a 

matter of law by merging it with Smith’s aggravated robbery conviction. As such, 

Smith’s sentence must be vacated, and this matter must be remanded for the trial 

court to resentence Smith on all four convictions consistent with State v. Foster

and without regard to merger. R.C. 2953.08(G)(2)(b). 

{¶28} Smith’s first assignment of error is, therefore, overruled. 
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{¶29} Smith’s second assignment of error concerns the trial court’s 

imposition of an increased sentence on his aggravated robbery conviction. Our 

remand for resentencing renders this assignment of error moot, and thus, we 

decline to address it. App.R. 12(A)(1)(c). State ex rel. Davila v. Bucyrus, 194 Ohio 

App.3d 325, 2011-Ohio-1731, ¶ 38. 

{¶30} Smith’s second assignment of error is, therefore, overruled as moot. 

{¶31} Having found an error of law with respect to the trial court’s July 15, 

2011 resentencing, we vacate Smith’s sentence and remand for the trial court to 

conduct a Foster resentencing hearing without consideration of merger, consistent 

with our opinion herein. 

Sentence Vacated and 

Cause Remanded 

SHAW, P.J. concurs. 

ROGERS, J. concurs in Judgment Only. 

/jlr