[Cite as State v. James,
2025-Ohio-2629.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DUSTIN LEE JAMES,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 24 MA 0104
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2022 CR 00353
BEFORE:
Katelyn Dickey, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Lynn Maro, Mahoning County Prosecutor, Atty. Ralph M. Rivera and Atty. Kristie
Weibling, Assistant Prosecuting Attorneys, for Plaintiff-Appellee and
Atty. Michael A. Partlow, for Defendant-Appellant.
Dated: July 25, 2025
–2–
DICKEY, J.
{¶1} Appellant, Dustin Lee James, appeals his sentences for felonious assault
in violation of R.C. 2903.11(A)(D)(1)(a), a felony of the second degree, and domestic
violence in violation of R.C. 2921.11(A)(D), a misdemeanor of the first degree, following
a jury trial; and having a weapon under disability, a violation of R.C. 2923.13(A)(2)(B), a
felony of the third degree, which was contemporaneously tried to the bench, in the
Mahoning County Court of Common Pleas. This matter is before us for a second time
after Appellant successfully challenged the trial court’s imposition of consecutive
sentences in State v. James, 2024-Ohio-4567 (“James I”). At the original sentencing
hearing and in the original sentencing entry, the trial court imposed concurrent sentences
to be served consecutively to Appellant’s previously-imposed sentence in 22 CR 84 (“22
CR 84 sentence”), without making the statutorily-mandated findings of fact required by
R.C. 2929.14(C)(4).
{¶2} At the resentencing hearing, the trial court imposed an eight-to-twelve year
sentence to be served consecutively with the 22 CR 84 sentence. In the resentencing
entry, the trial court imposed separate sentences for each conviction – eight-to-twelve
years for the felonious assault conviction; one-hundred-and-eighty days for the domestic
violence conviction; and thirty-six months for the weapon under disability conviction – to
be served concurrently, but consecutively to the 22 CR 84 sentence.
{¶3} In this appeal, Appellant advances three assignments of error. First,
Appellant challenges the imposition of his concurrent sentences to be served
consecutively to the 22 CR 84 sentence. Second, Appellant contends the trial court’s
imposition of the maximum sentences for the felonious assault and domestic violence
convictions is not supported by the record. Finally, Appellant argues the trial court’s
failure to impose separate sentences for each crime during the resentencing hearing
constitutes an illegal blanket or omnibus sentence.
{¶4} For the following reasons, we affirm the trial court’s imposition of
consecutive sentences. We further find Appellant’s challenges to the imposition of
maximum sentences and the omnibus sentence at the resentencing hearing are barred
by res judicata.
Case No. 24 MA 0104
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FACTS AND PROCEDURAL HISTORY
{¶5} The following facts are taken from James I:
On June 19, 2022, Appellant’s live-in girlfriend was treated in the
emergency room for injuries, which she said Appellant caused that day. He
was arrested in the hospital lobby. Five days later, the victim’s mother
called the Boardman police to report finding a gun in the nightstand while
she was cleaning out the apartment for the victim, who moved out after the
assault.
On July 28, 2022, Appellant was indicted for felonious assault
(second-degree felony), having a weapon while under disability (third-
degree felony), and misdemeanor domestic violence (first-degree felony
[sic]). Appellant waived a jury trial on the charge of having a weapon while
under disability, and the court heard evidence on this count.
At the jury trial on the other two counts, a police officer who
responded to the hospital testified he observed swelling and bruising on the
victim’s nose, a cut on her upper lip, and marks around her right upper arm
and forearm. Photographs he took were introduced as evidence. (Tr. 135-
138); (St.Ex. 1-6). He described the victim as distraught, upset, in pain, and
crying. (Tr. 138). He said the victim attributed the injuries on her arm to
Appellant grabbing her. He said, “As far as the injuries on her face, I don’t
believe she could recall how she obtained those injuries.” (Tr. 144). A
second police officer confirmed he observed the victim’s facial injuries and
injured arm at the hospital. (Tr. 126).
The victim testified she dated Appellant exclusively and lived with
him for seven years. (Tr. 146). On the day of the incident, they continued
an argument from the prior night. (Tr. 148). After approximately an hour,
Appellant “flipped a table, he was getting angry, and I knew this was usually
where he got physical.” He was yelling at her, and she decided to flee the
Case No. 24 MA 0104
–4–
apartment hoping she would be safer by the busy road. (Tr. 148-149).
However, he followed her outside and continued the argument.
According to her testimony, “I just remember him threatening me,
telling me he was going to count down, if I didn’t get inside the apartment
he was going to hurt me.” (Tr. 149). She then testified, “I just remember
pleading with him not to . . . The next thing I recall was [sitting] at the
apartment next door and there was like blood all over my shirt, and the guy
that lived [with Appellant's cousin] next door was just looking at me and I
was crying.” (150-151).
The victim responded in the affirmative when the prosecutor asked if
she blacked out. (Tr. 150). When she woke up confused in his cousin’s
apartment, Appellant “tried to convince” the victim and Appellant’s cousin
that the victim fell at the single step outside of their apartment. (Tr. 152,
170).
After the victim voiced that she needed to go to the hospital, they
returned to the victim's apartment where Appellant's cousin had her change
into clean clothes (instead of wearing her bloodied pajama top and pants).
(Tr. 152-153). Appellant gave the victim toilet paper because her nose “was
bleeding pretty bad.” According to the victim’s testimony, when the cousin
left to get ready to transport them to the hospital, Appellant said, “well, I
really messed up this time” (or “[s]omething along th[ose] lines”). (Tr. 153).
When the victim arrived at the emergency room with Appellant at her side,
she reported she had been in a fight but testified this was what Appellant
told her to say. (Tr. 153, 174).
Regarding her injuries, the victim testified, “My nose was broken, my
orbital nose was broken, and my lip was busted up.” When asked if she
experienced a lot of pain, she explained, “Yeah, my face was pretty swollen
on this side and I was bleeding from my nose for a while. And even in my
lip, still, here, I have a little scar inside of it that hurt, too. And it was hard to
Case No. 24 MA 0104
–5–
brush my teeth for a couple days after that. My mouth was really sore.” (Tr.
155).
The victim disclosed being ashamed, embarrassed, and fearful to
report Appellant's abuse. (Tr. 175). However, just before she was released
(with Appellant in the waiting room), she was encouraged by a female friend
she was texting “to let them know what actually happened.” (Tr. 154-155,
174-175). The victim then did so by telling a nurse and the physician
assistant about what happened to her and answering yes when asked if she
wanted them to call the police. (Tr. 156). She estimated she had been at
the hospital for an hour before disclosing Appellant's abuse. (Tr. 157). When
defense counsel asked why she thought Appellant hurt her if she could not
remember what happened between his threat and waking up bleeding, the
victim replied, “I don't remember it, but I know what happened . . . because
I know how he would get. He would get physical with me when he would get
like that; so, I know.” (Tr. 160).
The victim read a letter Appellant sent her from jail. The letter said
he would always love her and pleaded with her to call his attorney who
wanted to talk to her. In the letter, Appellant also stated, “I never got to
explain, but just know this. It didn’t happen the way you think. Please
remove any thoughts you have of me hitting you over and over again. That’s
just not the case. Damn the drugs. I hope you realize we weren’t ourselves
those past few months.” (Tr. 159); (St.Ex. 7-8). As to this reference to drugs,
the victim said they used fentanyl daily, including the night before the
incident; she did not believe the drug would have continued to affect her by
the time the incident occurred. (Tr. 160).
An emergency room physician assistant testified the victim
presented with a lot of swelling to the sides of the face, facial bones, and
nasal bridge. Her eyes were also swollen. She had “a very fat lip with a split
in the top” and bruising on the left side of her face and her right upper arm
Case No. 24 MA 0104
–6–
and forearm. The CT scan showed a nasal fracture (on the bridge of the
nose) and a fractured maxillary bone extending into cheek regions (as
pointed to from the stand). The physician assistant described the injury as
“Very, very painful” and opined the victim would experience pain until it
healed. She prescribed ice and Percocet. (Tr. 210-215).
The physician assistant testified the victim was crying and upset the
entire time she spent with her in the emergency room. It was noted a typical
emergency room visit lasts at least three hours. This witness said the victim
initially said she was assaulted during an argument with a friend; however,
near the end of the visit, she admitted she was assaulted by her boyfriend
four hours earlier outside of their home. The victim also disclosed Appellant
was calling her phone from the waiting room and asking to come see her.
When the victim said she did not feel safe returning home with Appellant
and asked for help, the physician assistant called the police. (Tr. 208-209,
217). On cross-examination of the physician assistant, testimony was
elicited that the victim reported being punched in the face multiple times by
Appellant. (Tr. 223-224, 227).
In the bench trial portion of the case, the victim testified she did not
possess a firearm. She answered in the affirmative upon being asked, “did
you know [Appellant] to possess a firearm?” When asked where Appellant
would keep his firearm, she disclosed, “In the apartment, sometimes in the
room or in the closet.” (Tr. 179). On cross-examination, the victim testified
she knew there was a weapon at the apartment on the day of the incident,
and she noted Appellant bought it from a friend a few years earlier. (Tr.
182). After the incident, the victim returned to their apartment only to gather
some necessities before entering a rehabilitation facility, at which time her
family cleaned out the apartment. (Tr. 180).
Case No. 24 MA 0104
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The victim’s mother testified she went to the apartment to clean out
her daughter’s belongings and found a gun in the drawer of the nightstand.
(Tr. 187-188). She called the police without touching the gun. (Tr. 188).
Lastly, a detective testified the victim’s mother called on June 24,
2022 to report the gun she found. (Tr. 193-194). The detective knew
Appellant was not permitted to possess a firearm due to a pending felony
indictment in Mahoning County C.P. No. 22 CR 84, which included two
counts of felonious assault. (Tr. 195-196, 198). He identified as exhibits
Appellant’s March 10, 2022 indictment containing notice that he was
prohibited from possessing a weapon due to the pending indictment and the
March 22, 2022 arraignment entry showing Appellant had been served with
the indictment. (Tr. 198-199); (St.Ex. 20-21). Upon obtaining a search
warrant, the detective retrieved the gun and a loaded magazine from the
top drawer of the nightstand; the gun’s serial number was scratched off. (Tr.
195-196). The detective said he had the gun test-fired and learned it was
operable. (Tr. 197). In any event, the defense stipulated to the firearm’s
operability. (Tr. 178).
The court found Appellant guilty of having a weapon while under
disability. The jury found Appellant guilty of felonious assault and domestic
violence. At sentencing, the court imposed a prison sentence of 8 to 12
years for felonious assault (with lesser concurrent sentences on the other
offenses for a total sentence of 8 to 12 years). As the state requested, the
court ordered the sentence in this case to be served consecutively to the
sentence Appellant was serving in 22 CR 84 (the prior case resulting in
Appellant's ban from possessing a weapon). Appellant filed a timely notice
of appeal from the February 8, 2024 sentencing entry.
James I at ¶ 2-17.
Case No. 24 MA 0104
–8–
{¶6} When the original sentence was imposed, Appellant was serving the 22 CR
84 sentence. A summary of the facts and resulting convictions in 22 CR 84 informs our
decision.
{¶7} Appellant’s convictions were predicated upon the following facts taken from
State v. James, 2024-Ohio-1322 (7th Dist.). On December 24, 2021, an ambulance was
dispatched to a local Walmart department store, where Appellant was displaying signs of
an overdose, including erratic behavior and slipping in and out of consciousness. When
Appellant became completely unresponsive and his vital signs began to plummet, Narcan
was administered.
{¶8} Upon receiving the injection, Appellant attacked the emergency medical
technician (“EMT”) providing medical treatment. The combined efforts of a second EMT
and three police officers dispatched to the scene were required to subdue Appellant. As
a result of the altercation, the treating EMT suffered a shoulder sprain and soreness in
her hands. The second EMT suffered a concussion. One of the officers was struck in the
face and suffered a split lip.
{¶9} On March 21, 2023, Appellant was sentenced to concurrent terms of
imprisonment totaling eight-to-twelve years for one count of felonious assault, a felony of
the second degree; three counts of assault, felonies of the fourth degree; one count of
obstructing business, a felony of the fifth degree; and one count of resisting arrest, a
misdemeanor of the second degree, following a jury trial in 22 CR 84 in the Mahoning
County Court of Common Pleas.
{¶10} Returning to the procedural history in this appeal, Appellant challenged the
sufficiency and weight of the evidence underlying his convictions in James I. In addition,
Appellant argued the trial court erred when it did not make the statutorily-mandated
findings to impose his sentences to be served consecutively with the 22 CR 84 sentence.
The state conceded the trial court’s sentencing error pursuant to State v. Hill, 2014-Ohio-
1965, ¶ 6, 20 (7th Dist.), abrogated on other grounds in State v. Marcum, 2016-Ohio-
1002. We affirmed Appellant’s convictions, but vacated his sentence and remanded the
matter for resentencing.
{¶11} Our opinion and judgment entry concludes:
Case No. 24 MA 0104
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For the foregoing reasons, the trial court and jury verdicts are
affirmed, but the judgment entry of sentence is reversed and vacated and
the case remanded for resentencing due to the lack of consecutive
sentence findings at the sentencing hearing and in the judgment entry.
James I, 2024-Ohio-4567, ¶ 56.
{¶12} It is important to note that the trial court imposed a single sentence of eight-
to-twelve years at the original sentencing hearing, without imposing separate sentences
for the domestic violence and firearm convictions. However, in the original sentencing
entry, the trial court imposed separate sentences for each crime: eight to twelve years
for the felonious assault conviction (maximum); 180 day for the domestic violence
conviction (maximum); and thirty-six months for the weapons conviction.
{¶13} At the resentencing hearing conducted on November 6, 2024, the trial court
imposed the identical sentence, but added the fact finding required to impose consecutive
sentences:
Therefore, it is the order of this Court that the defendant be
sentenced to eight years in the Department of Rehabilitation and
Corrections which, based on the behavior in the Department of
Rehabilitation and Corrections, could be increased to 12 years.
It is the further order of this Court that the defendant -- this case run
consecutive to the case in 22 CR 84. The Court finds that consecutive
sentences are necessary to protect the public from future crimes and punish
the offender and that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses
to the public.
The Court also finds that the defendant committed the offense while
awaiting sentencing or on probation or out on bail on another charge.
(11/6/24 Resent. Hrg, p. 20-21.) In the resentencing entry, the trial court imposes the
identical separate sentences for each crime imposed in the original sentencing entry:
Case No. 24 MA 0104
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eight to twelve years for the felonious assault conviction; 180 days for the domestic
violence conviction; and thirty-six months for the weapons conviction.
{¶14} This timely appeal followed.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO EIGHT
YEARS OF INCARCERATION, TO BE SERVED CONSECUTIVELY TO
THE SENTENCE IMPOSED IN AN UNRELATED CASE, AS THE
RECORD DOES NOT SUPPORT SUCH A SENTENCE.
{¶15} In his first assignment of error, Appellant contends there is not clear and
convincing evidence in the record supporting the imposition of consecutive sentences.
We utilize R.C. 2953.08(G) as the standard of review in all felony sentencing appeals.
State v. Michaels, 2019-Ohio-497, ¶ 2 (7th Dist.), citing State v. Marcum, 2016-Ohio-
1002, ¶ 1.
{¶16} R.C. 2953.08(G) states in pertinent part:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
Case No. 24 MA 0104
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(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2)(a)-(b).
{¶17} There is a statutory presumption in favor of concurrent sentences. State v.
Bonnell, 2014-Ohio-3177, ¶ 23. R.C. 2929.41(A) reads in relevant part, “[e]xcept as
provided in division (B) of this section, division (C) of section 2929.14, or division (D) or
(E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of
imprisonment shall be served concurrently with any other prison term, jail term, or
sentence of imprisonment imposed by a court of this state, another state, or the United
States.”
{¶18} R.C. 2929.14(C)(4) reads in its entirety:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive sentence is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender’s conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
Case No. 24 MA 0104
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(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶19} A trial court judge must make the consecutive sentence findings at the
sentencing hearing and must additionally incorporate the findings into the sentencing
entry. State v. Williams, 2015-Ohio-4100, ¶ 34 (7th Dist.), citing Bonnell,
2014-Ohio-3177,
¶ 37. The court “need not state reasons to support its finding nor is it required to use any
‘magic’ or ‘talismanic’ words, so long as it is apparent that the court conducted the proper
analysis.”
Id., citing State v. Jones,
2014-Ohio-2248, ¶ 6 (7th Dist.); State v. Verity, 2013-
Ohio-1158, ¶ 28-29 (7th Dist.).
{¶20} Having reviewed the record, we find there is clear and convincing evidence
supporting the trial court’s imposition of consecutive sentences in this case. Appellant
brutally assaulted his girlfriend of seven years. Despite her attempt to extricate herself
from their verbal altercation, Appellant followed her out of the residence and demanded
she return. The victim testified she blacked out as a result of the assault. Appellant
fractured the victim’s nose and maxillary bone.
{¶21} Appellant followed the victim to the hospital and called her from the waiting
room. When the victim avoided direct contact with Appellant, he wrote her a letter in
which he questioned her recollection of the assault and attempted to manipulate her
memory of the events. His efforts at intimidation continued at the trial, where he smirked
throughout her testimony and attempted to speak to her. Finally, there is no dispute
Appellant was on bond for the crimes charged in 22 CR 84 when he assaulted the victim
in this case.
{¶22} Accordingly, we find consecutive sentences are necessary to protect the
public from future crime and to punish Appellant. Further, consecutive sentences are not
disproportionate to the seriousness of Appellant’s conduct and to the danger he poses to
the public.
Case No. 24 MA 0104
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{¶23} After summarizing the appellate standard of review for sentencing in Ohio,
including R.C 2953.08(G), R.C. 2929.14(C)(4), and R.C. 2929.11 and 2929.12, Appellant
opines:
[T]he current standard of review for felony sentencing essentially amounts
to no review at all, assuming the trial court stays within whatever sentencing
range is established by statute. Such a procedure does not protect the due
process rights of the accused with regard to sentencing and appellate
review that is actually “meaningful” is required to protect those rights.
(Appellant’s Brf., p. 4.)
{¶24} Appellate Rule 16(A), captioned “Brief of the appellant,” reads in relevant
part:
The appellant shall include in its brief, under headings and in the
order indicated, all of the following:
...
(7) An argument containing contentions of the appellant with respect
to each assignment of error presented for review and the reasons in support
of the contentions, with citations to authorities, statutes, and parts of the
record on which appellant relies.
{¶25} The Eleventh District has twice declined to consider the foregoing two-
sentence constitutional challenge to Ohio’s appellate standard of review due to the dearth
of any analysis and case citation. Ironically, these nearly identical arguments to this case
were also made by Appellant’s same counsel while representing other criminal
defendants on appeal in the Eleventh District. In State v. Mueller, 2022-Ohio-3974, (11th
Dist.), the Eleventh District observed:
Appellant additionally argues that our standard of review for felony
sentencing fails to provide meaningful appellate review and fails to protect
the due process rights of the accused. His argument on appeal, however,
Case No. 24 MA 0104
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is less than clear and does not include constitutional analysis or citation to
relevant authority. This court recently declined to address this exact
argument on the basis that an appellate court “should avoid answering
constitutional questions unless it is absolutely necessary to do so.” State v.
Mizicko, 11th Dist. Trumbull No. 2021-T-0017, 2022-Ohio-262, ¶ 27-31
(because the appellant “has failed to present a coherent constitutional
argument, we decline to address it”), citing State v. Talty, 103 Ohio St.3d
177,
814 N.E.2d 1201,
2004-Ohio-4888, ¶ 9.
Id. at ¶ 11. We agree Appellant has failed to raise a constitutional challenge to Ohio’s
appellate standard of review that complies with Appellate Rule 16(A)(7).
{¶26} Accordingly, we find the imposition of the concurrent sentences in this case
to be served consecutively with the 22 CR 84 sentence is supported by the record. We
further find Appellant’s first assignment of error has no merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO THE
MAXIMUM SENTENCES AVAILABLE UNDER THE RELEVANT
STATUTES.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY IMPOSING A BLANKET SENTENCE
FOR APPELLANT’S CONVICTIONS.
{¶27} The state argues Appellant’s second and third assignments of error are
barred by res judicata. The state reasons the trial court reimposed the identical sentence
(but for the fact finding to impose consecutive sentences) imposed at the original
sentencing hearing and Appellant did not challenge the imposition of maximum sentences
or the omnibus sentence in James I.
{¶28} “Under the doctrine of res judicata, a final judgment of conviction bars a
convicted defendant who was represented by counsel from raising and litigating . . . any
defense or any claimed lack of due process that was raised or could have been raised
Case No. 24 MA 0104
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. . . on an appeal from that judgment.” State v. Perry, 10 Ohio St.2d 175 (1967), paragraph
nine of the syllabus. It is well settled that “any issue that could have been raised on direct
appeal and was not is res judicata and not subject to review in subsequent proceedings.”
State v. Saxon,
2006-Ohio-1245, ¶ 16.
{¶29} The scope of an appeal from a new sentencing hearing is limited to issues
that arise at the new sentencing hearing. See State v. Fischer, 2010-Ohio-6238, ¶ 40,
reversed on other grounds in State v. Harper,
2020-Ohio-2913. The doctrine of res
judicata does not bar a defendant from objecting to issues that arise at the resentencing
hearing or from the resulting sentence. State v. Wilson,
2011-Ohio-2669, ¶ 30.
{¶30} In Wilson, the Supreme Court observed:
A remand for a new sentencing hearing generally anticipates a de
novo sentencing hearing. R.C. 2929.19(A). However, a number of
discretionary and mandatory limitations may apply to narrow the scope of a
particular resentencing hearing. For example, the parties may stipulate to
the sentencing court’s considering the record as it stood at the first
sentencing hearing. State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855,
846
N.E.2d 1, ¶ 37. In a remand based only on an allied-offenses sentencing
error, the guilty verdicts underlying a defendant’s sentences remain the law
of the case and are not subject to review. State v. Whitfield, 124 Ohio St.3d
319,
2010-Ohio-2,
922 N.E.2d 182, at ¶ 26-27. Further, only the sentences
for the offenses that were affected by the appealed error are reviewed de
novo; the sentences for any offenses that were not affected by the appealed
error are not vacated and are not subject to review. [State v.] Saxon, [2006-
Ohio-1245] at paragraph three of the syllabus.
Id. at ¶ 15.
{¶31} In State v. Elmore, 2017-Ohio-925 (7th Dist.), we vacated Elmore’s
sentence and remanded the matter for resentencing due to the trial court’s failure to set
forth facts supporting the imposition of consecutive sentences. At the resentencing
hearing, Elmore argued for the first time his felonious assault and having weapons under
Case No. 24 MA 0104
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disability convictions were allied offenses of similar import and should merge for
sentencing purposes. See generally State v. Ruff, 2015-Ohio-995 and R.C. 2941.25.
{¶32} We held the scope of the resentencing pursuant to the remand order in
Elmore’s original appeal was limited to the issue of consecutive sentences. Because we
did not remand the matter for a de novo sentencing hearing, and Elmore did not assert
his convictions were allied offenses of similar import at his original sentencing hearing,
we found the issue was barred by res judicata. Elmore at ¶ 15.
{¶33} Here, the maximum sentences and the omnibus sentence did not arise at
the resentencing hearing. Further, we did not remand this matter for a de novo sentencing
hearing, but instead, for a limited sentencing hearing on the imposition of consecutive
sentences. The Ohio Supreme Court has held only the sentences for the offenses that
were affected by the appealed error are reviewed de novo; the sentences for any offenses
that were not affected by the appealed error are not vacated and are not subject to review.
The imposition of Appellant’s individual concurrent sentences was not subject to the
remand, as only the imposition consecutive to the 22 CR 84 sentence was challenged in
James I.
{¶34} For the foregoing reasons, we find res judicata bars Appellant’s second and
third assignments of error. The same alleged errors existed at the original sentencing
hearing and in the original sentencing entry, but Appellant did not challenge them in
James I.
CONCLUSION
{¶35} For the foregoing reasons, the trial court’s imposition of concurrent
sentences in this case to be served consecutively to the 22 CR 84 sentence is affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 24 MA 0104
[Cite as State v. James, 2025-Ohio-2629.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of
the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
