[Cite as State v. Williams , 2014-Ohio-725.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY STATE OF OHIO Plaintiff-Appellee

v. ADAM WILLIAMS Defendant-Appellant
Appellate Case No. 2012-CA-43 Trial Court Case No. 2010-CR-181
(Criminal Appeal from ( Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of February, 2014.

. . . . . . . . . . . ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Greene County Prosecutor, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee CHARLES M. BLUE, Atty. Reg. No. 0074329, 401 East Stroop Road, Kettering, Ohio 45429 Attorney for Defendant-Appellant

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 WELBAUM, J. {¶ 1} Defendant-Appellant, Adam Williams, appeals from the trial court’s entry revoking his community control sanctions and se ntencing him to prison. Williams originally received community control sanctions as a result of pleading guilty to five counts of possessing cocaine and one count of trafficking cocaine. On appeal, Williams contends that the trial court erred in convicting him of multiple allied offenses of similar import. He claims that his offenses should have merged to form only two possession counts, or alternativel y, one possession count and one trafficking count. {¶ 2} We conclude that the allied offense argument raised by Williams is barred by the doctrine of res judicata. The argument was ripe for appeal after Williams had been convicted and sentenced to community control sanctions. In stead of properly raising the argument in an appeal from his conviction and se ntence, Williams raised the argument over a year later in an appeal from the trial court’s en try revoking his community contro l. Under the doctrine of res judicata, Williams’s argument is not subject to appellate review, becau se it could have been raised in an earlier appeal from his conviction. A ccordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings {¶ 3} On April 2, 2010, Williams was indicted by the Greene County Grand Jury on five counts of possessing cocai ne in violation of R.C. 2925.11( A), five counts of possessing criminal tools in violation of R.C. 2923.24(A), and one count of traffickin g cocaine in violation of R.C. 2925.03(A)(2), all felonies of the fi fth degree. The charges arose from Williams 3

 engaging in drug activity with three other indivi duals at a motel room in Fairborn, Ohio. A K-9 unit led police to Williams’s room, and officers saw the following items in plain view: a glass water bong that contained residue ; a plate of white powder sitting on a table; and a box of empty sandwich bags on a dresser. Af ter obtaining a warrant, the police searched the motel room and found a cigarette package in a pair of Williams’s pants, which contained a small bag of cocaine and a clear capsule of white powder. The po lice discovered a second cigarette package in a purse belonging to one of the ot her occupants, and it also contai ned a small bag of cocaine and a clear capsule of white powder. The police also found a container of white powder and a creatine bottle sitting next to a television. Each of these items were collected by the police, and they all tested positive for cocaine or marijuana. {¶ 4} Williams was arrested, and he entered into a plea agreement in which he pled guilty to five counts of possessing cocaine and one count of tra fficking cocaine. In exchange, the State dismissed the five c ounts for possessing criminal tools. On October 19, 2010, the trial court sentenced Williams to five years community control sanctions with six months of inpatient drug treatment at Greene Leaf Therapeutic Community. During sentencing, the court advised Williams that if he violated the conditions of community control, he would have to serve 12 months in prison for each of his six offenses c onsecutively, which would amount to a total prison term of 72 months. Williams did not file an appeal from his conviction or sentence. {¶ 5} On March 29, 2012, the Greene County A dult Probation Depa rtment filed a motion for capias on grounds that Williams had viol ated the conditions of community control. Williams waived his right to a probable cause hearing on the matter, but requested an evidentiary hearing, which was held on May 10, 2012. At th e evidentiary hearing, Williams admitted to 4

 violating the conditions of community control as alleged by the probati on department. As a result, the trial court revoked Williams’s community control a nd modified his sentence. Instead of the 72-month term prescribed during his origin al sentencing, the tria l court ordered him to serve a total of 42 months in pr ison for all six of his offenses. {¶ 6} Williams now appeals from the trial court’s May 10, 2012 entry revoking his community control and sentencing him to 42 months in prison. He filed his notice of appeal on June 11, 2012.

II. Did the Trial Court Err in Convicting the Appellant of Multiple Allied Offenses of Similar Import? {¶ 7} Williams’s Sole Assignment of Error states as follows: THE TRIAL COURT ERRED BY CONVICTING THE APPELLANT OF MULTIPLE ALLIED OFFENSES OF SIMILAR IMPORT. {¶ 8} Under this assignment of error, Willia ms contends that his five counts of possessing cocaine and one count of trafficking cocaine were a llied offenses of similar import and should have been merged. Specifically, he claims that th e location and packaging of the drugs found in his motel room only support two se parate possession offenses . He also claims that one of the possession offenses must merge with the trafficking offense. As a result, Williams argues that he only should have b een convicted of two counts of possession, or alternatively, one count of possession and one count of trafficking. {¶ 9} In response, the State contends that W illiams’s allied offense argument is outside the scope of this appeal. Specifically, the State argues that the doctrine of res judicata prevents 5

 Williams from collaterally attack ing his conviction through an appeal of the court’s May 10, 2012 entry revoking his community control. It is the State’s position that Williams was required to raise his allied offense argument by direc tly appealing his Octobe r 19, 2010 conviction, which he failed to do. {¶ 10} As a preliminary matter, we note that “a llied offense claims are nonjurisdictional and may be barred through application of the principles of res judicata.” (Citations omitted.) State v. Segines , 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259, ¶ 7. In State v. Pound , 2d Dist. Montgomery Nos. 24789, 24980, 2012-Ohio-3392, we stated the following regarding the doctrine of res judicata. “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel fro m 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 coul d have been raised by the defendant at the trial, which resulted in th at judgment of conviction, or on an appeal from that judgment.” Id. at ¶ 8 , quoting State v. Szefcyk , 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus.

{¶ 11} In other words, “any issue that could ha ve been raised on direct appeal and was not is res judicata and not subject to review in subsequent pro ceedings.” (Citations omitted.)
State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 16. {¶ 12} Ohio’s Third, Fourth, Fifth, and Twelft h Appellate Districts have specifically held that res judicata bars a defendant from presenting an allied offense argument in an appeal from an entry revoking community control as oppos ed to appealing from the original entry of 6

 conviction. See State v. Harlow, 3d Dist. Union No. 14-04-23, 2005-Ohio-959, ¶ 8-12; State v. Crutchfield , 3d Dist. Paulding Nos. 11-01-09, 11-01-10, 2002 WL 206008, *2 (Feb. 8, 2002); State v. Fields, 5th Dist. Richland No. 2012- CA-0011, 2012-Ohio-4808, ¶ 14-19; State v. Black, 5th Dist. Richland No. 08 CA 41 , 2009-Ohio-3608, ¶ 20-21; State v. Allbaugh , 4th Dist. Athens No. 12CA23, 2013-Ohio-2031, ¶ 14-18; State v. Dodson, 12th Dist. Butler No. CA2011-02-034, 2011-Ohio-6347, ¶ 7-9; State v. Rogers , 12th Dist. Clermont No. CA2007-05-068, 2007-Ohio-7076, ¶ 4-6; State v. Painter , 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, ¶ 14-19. {¶ 13} While not in the context of a defendant appealing an entry revoking community control, we have also held that an allied offense claim must be raised in a direct appeal from a defendant’s conviction. In Pound , 2d Dist. Montgomery Nos. 24789, 24980, 2012-Ohio-3392 we stated the following: [W]hen an appellant does not raise the issue of merger in a timely direct appeal, the challenge is barred by the doctrine of res judicata. State v. Martin, Montgomery 2d Dist. No. 21697, 2007-Ohio-3585, ¶ 3. See also State v. Poole , 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13 (“the time to challenge a conviction based on allied offe nses is through a direct appeal—not a resentencing hearing”); and State v. Goldsmith , 8th Dist. Cuyahoga No. 95073, 2011-Ohio-840, ¶ 11 (“[b]ecause [appellant] failed to raise on direct appeal from his conviction the issue concerning whether the offenses challenged herein are allied offenses of similar import subject to merger, we find that the issue is barred by the doctrine of res judicata”). Id. at ¶ 14. 7

 {¶ 14} The Eighth District has also concluded that an allied offense claim must be raised in a direct appeal from a defendant’s conviction. See State v. Townsend, 8th Dist. Cuyahoga No. 97214, 2012-Ohio-496 , ¶ 7 (“the issue of whether two offenses constitute allied offenses subject to merger must be raised on direct appeal from a conviction, or res judicat a will bar a subsequent attempt to raise the issue”); State v. Goldsmith, 8th Dist. Cuyahoga No. 95073, 2011-Ohio-840, ¶
11 ; State v. Poole , 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13; Segines , 8th Dist. Cuyahoga No. 99789, 2013-Ohio-5259 at ¶ 11. {¶ 15} We note that this topic has created some confusion given that various districts, including ours, have also held that when a tr ial court imposes a sentence of community control with a reserve prison sentence, an appeal of the prison sentence does not become ripe until after a defendant actually violates co mmunity control. In other words, the “disposition is only appealable if and when the c ourt revokes community control a nd sentences the defendant to prison.” State v. Lucas , 2d Dist. Champaign No. 2006 CA 1, 2007-Ohio-188, ¶ 59, citing State v. Adams, 2d Dist. Champaign No. 2003 CA 15, 2004-Ohio-3784, ¶ 28-29; State v. Dunson, 2d Dist. Montgomery No. 20961, 2006-Ohio-775; see also State v. Poppe , 3d Dist. Auglaize No. 2-06-23, 2007-Ohio-688, ¶ 14 (“an appeal of a reserved sentence of imprisonment that is part of a sentence of community control is not ripe until an actual sentencing order imposes the prison term for community control violation”); State v. Reed , 3d Dist. Defiance No. 4-05-22, 2005-Ohio-5614, ¶ 11; State v. Sparks , 4th Dist. Washington No. 03CA21, 2003-Ohio-6300, ¶ 11-13. {¶ 16} At first blush, the foregoing cases appear to conflict with the cases that require a defendant to present an allied o ffense claim in a direct appeal from his conviction as opposed to 8

 appealing after his community cont rol is revoked. However, this is not the case. The ripeness issue in the foregoing cases involve defendants who appealed aspects of their prison sentence before their community control ha d been violated and/or revoked. In other words, they were appealing a prison sentence that they had not ye t received. The other line of cases involved a completely different scenario, as there was a co mmunity control violati on and a delayed appeal on allied offense grounds. {¶ 17} This matter is clarified in State v. Wilson, 1st Dist. Hamilton No. C -061000, 2007-Ohio-6339. In Wilson , the First District addressed the ripeness issue in the context of an allied offense claim, and it pointed out that “by raising an allied-offense argument, [the appellant] is challenging the convictions , not just the sentences.” Id . at ¶ 5. As a result, Wilson held that the allied offense issue, which u ltimately affected the defendant’s conviction, was ripe for review before the community control violation. Id. {¶ 18} We further note that the Supreme Court of Ohio has recently declined to certify a conflict on this issue. On April 22, 2013, the Tw elfth District grante d a motion to certify a conflict on grounds that its decision in Painter , 12th Dist. Clermont No. CA2012-04-031, 2013-Ohio-529, “is in conflict with several cases from different dist ricts that have held that a defendant may argue issues rega rding his original sentence after community control has been revoked, because the prison sentence is not tec hnically imposed until the revocation of the community control.” Entry Granting Motion for Certification, 12th Dist. Clermont No. CA2012-04-031 (Apr. 22, 2013), p. 13, citing Poppe , 3d Dist. Auglaize No. 2-06-23, 2007-Ohio-688; State v. Ellis , 4th Dist. Washington No. 02CA48, 2003-Ohio-2243. 1 In Painter ,

1 The Twelfth District’s Entry Granting Motion for Certification is attached to Painter’s Notice of Certified Conflict, which wa s 9

 the court concluded that the defendant was barred from raising an allied offense argument in an appeal from an entry revoking community control, because the argument related to the original sentencing entry. Painter at ¶ 13-14. After reviewin g the proposed conflict in Painter , the Supreme Court determined that no conflict existe d among the districts on the ripeness issue.
State v. Painter , 136 Ohio St.2d 1447, 2013-Ohio-3210, 991 N.E.2d 255. {¶ 19} As a result of the foregoing, we w ill follow the precedent set by the Third, Fourth, Fifth, and Twelfth Distri cts, and hold that res judicata bars a defendant from presenting an allied offense argument in an appeal from an entry revoking community control, as the argument is ripe for appeal af ter conviction, and should be presen ted in a direct appeal from the original entry of c onviction and sentence. {¶ 20} In this case, Williams’s allied offense ar gument should have been raised in an appeal from his October 19, 2010 convi ction and sentence. Instead, he raised his argument in an appeal from the May 10, 2012 entry revoking his comm unity control. As a result, we find that the doctrine of res judicata bars Williams from raising the allied offense argument in this appeal. {¶ 21} For the foregoing reasons, Williams’s sole assignment of error is overruled.

III. Conclusion {¶ 22} Having overruled Williams’s sole assignment of error, the judgment of the trial court is affirmed.

. . . . . . . . . . . . . HALL, J., concurs.

filed under Supreme Court Case No. 2013-0801 on May 17, 2013. 10

 DONOVAN, J., dissenting: {¶ 23} I disagree. In my view, a challenge to a reserved prison term (one, in fact, which was modified downward a nd resulted in a new judgment entry) is unripe and not justiciable until the judgment is entered revoking community cont rol. The majority’s opinion will result in countless appeals from the grant of community control sanctions which may ultimately be unnecessary due to successful completion of commun ity control or administrative termination thereof. {¶ 24} Although Williams did not appeal his sentence when he was informed of a potential 72-month sentence, the new judgment entry which imposed the 42-month sentence was imposed for the very first time upon his revocation of community control. Thus, in my view, Williams has a right to a direct appeal of the imposition of a prison term. Prior to the 42-month sentence, the judgment entry of community control was only a “notice” of a potential sentence as referenced in R.C. 2929.15(B)(2). “Notice” is not synonymous with imposition. Furthermore, because Williams’ sentence includes terms which are of a consecutive nature, the court was required to make findings pursuant to R.C. 2929.14(C)(4), which it failed to do. {¶ 25} Lastly, in the alternative, I would gran t a delayed appeal pursuant to App.R. 5(A) as it appears the merger argument has arguable merit and would likely reduce Williams’

sentence.

. . . . . . . . . . . Copies mailed to: Elizabeth A. Ellis Charles M. Blue Hon. Michael A. Buckwalter 11

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