State v. Ivory

[Cite as State v. Ivory, 

.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97429



                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           WILEY IVORY
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-389997

        BEFORE: E. Gallagher, J., Rocco, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                February 23, 2012
FOR APPELLANT

Wiley Ivory, pro se
Inmate #406-107
Mansfield Correctional Institution
P.O. Box 788
Mansfield, Ohio 44901


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Mark J. Mahoney
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



        EILEEN A. GALLAGHER, J.:

        {¶1}   This is an accelerated appeal authorized pursuant to App.R. 11.1 and Loc.App.R.

11.1.

        {¶2}   Wiley Ivory (“appellant”) appeals the judgment of the Cuyahoga Court of

Common Pleas denying his motion for resentencing. For the following reasons, we affirm.

        {¶3}   Appellant was indicted on April 17, 2000, with one count of rape with a repeat

violent offender specification, a sexually violent predator specification and a notice of prior

conviction (Count 1); kidnapping (Counts 2 and 3), each count including a notice of prior

conviction, a repeat violent offender specification and a sexual motivation specification; and

gross sexual imposition (Count 4).

        {¶4}   On January 30, 2001, a jury found appellant guilty of all counts, including the

sexual motivation specifications as charged in Counts 2 and 3. Prior to sentencing, the court
conducted an evidentiary hearing and granted appellant’s motion for directed verdict as to the

repeat violent offender specifications on Counts 1, 2, and 3. The trial court sentenced appellant

to a prison term of nine years on Count 1, eight years on Count 2, and seven years on Count 3.

Each of those terms was to run consecutive to one another. Appellant was sentenced to four

years on Count 4, to run concurrently with the sentences imposed on the first three counts, and

found him to be a sexual predator.

         {¶5}   On March 21, 2002, appellant appealed his conviction and we affirmed the

judgment of the trial court in State v. Ivory, 8th Dist. No. 79722, 

, 

 (“Ivory I”). Thereafter, appellant filed an application for reopening pursuant to App.R.

26(B), which we denied in State v. Ivory, 8th Dist. No. 79722, 

, 

.

         {¶6}   On September 26, 2011, appellant filed a motion for resentencing, which the trial

court denied. This appeal followed.

         {¶7}   Appellant brings the present appeal advancing the following sole assignment of

error:   “The trial court erred in failing to hold that the offenses of rape, gross sexual imposition

and kidnapping, were allied offenses of similar import; requiring merger of the offenses for the

purposes of sentencing.”

         {¶8}   Appellant’s claim is barred by res judicata. 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 at the trial that resulted in

that judgment of conviction or on an appeal from that judgment. Stave v. Perry, 

, 

 (1967). It is well established that res judicata bars the consideration
of issues that could have been raised on direct appeal. State v. Saxon, 

,

, 

, at ¶ 16-17.

       The issue of whether two offenses constitute allied offenses of similar import
       subject to merger has been recognized as an issue that is required to be raised on
       direct appeal from a conviction, or else res judicata will bar a subsequent attempt
       to raise the issue. State v. Flagg, 8th Dist. Nos. 95958 and 95986,
       

, 

, at ¶ 8, quoting State v. Goldsmith, 8th Dist.
       No. 95073, 

, 

, at ¶ 6.

       {¶9}    In this case, the appellant failed to advance his merger challenge when he

appealed his conviction in Ivory I, which was the proper avenue.                Therefore, we find

appellant’s sole claim to be barred by res judicata.

       {¶10} Accordingly, the judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.



       It is ordered that a special mandate be sent to said lower court to carry this judgment into

execution.    The defendant’s conviction having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



KENNETH A. ROCCO, P.J., and MARY EILEEN KILBANE, J., CONCUR