[Cite as State v. Hickman, 2012-Ohio-3050.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : THOMAS T. HICKMAN : Case No. 11-CA-134 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09CR332
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ THOMAS HICKMAN, PRO SE 20 South Second Street Inmate #618258 4th Floor Chillicothe Correctional Institution Newark, OH 43055 P.O. Box 5500 Chillicothe, OH 45601 Licking County, Case No. 11-CA-134 2
Farmer, J.
{¶1} On July 17, 2009, the Licking County Grand Jury indicted appellant,
Thomas Hickman, on one count of felony fleeing in violation of R.C. 2921.331, three
counts of possession of drugs in violation of R.C. 2925.11, and one count of tampering
with evidence in violation of R.C. 2921.12.
{¶2} On December 7, 2009, appellant pled no contest to the felony fleeing
count and guilty to the possession counts, and the tampering count was dismissed. By
judgment entry filed same date, the trial court found appellant guilty of the felony fleeing
count and sentenced him to an aggregate term of three years and ten months in prison,
plus an additional twenty-five months of postrelease control time from a prior case.
{¶3} On November 22, 2011, appellant filed a petition to modify and/or reduce
sentences. By judgment entry filed November 30, 2011, the trial court denied the
petition.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRORED (SIC) BY NOT RECOGNIZING THE
DEFENDANT'S PETITION TO MODIFY AND/OR REDUCE SENTENCES AS PRE-
SENTENCE MOTION TO WITHDRAW HIS PLEA UNDER CRIM.R. 32.1 BECAUSE
DEFENDANT WAS GIVEN A VOID OR VOIDABLE SENTENCE IT SHOULD HAVE
BEEN CONSIDERED A NULLITY AND BEEN VACATED AND DEFENDANT
SUBSEQUENTLY RESENTENCED." Licking County, Case No. 11-CA-134 3
II
{¶6} "THE TRIAL COURT ERRORED (SIC) AND ABUSED ITS DISCRETION
BY REFUSING TO CORRECT A PLAIN ERROR THAT OCCURRED AT
SENTENCING WHERE APPELLANT WAS GIVEN CONSECUTIVE SENTENCES ON
ALLIED OFFENSES OF SIMILAR IMPORT THAT SHOULD HAVE BEEN MERGED."
III
{¶7} "THE TRIAL COURT ERRORED (SIC) AND ABUSED ITS DISCRETION
WHEN IT ARBITRARILY DISMISSED THE DEFENDANT'S PETITION TO CORRECT
PLAIN ERROR, WITHOUT A HEARING AND WITHOUT RULING UPON THE ISSUES
PRESENTED IN THE PETITION TO CORRECT PLAIN ERROR, BY ESSENTIALLY
INVOKING THE DOCTRINE OF RES JUDICATA WHEN IN FACT THE DOCTRINE OF
RES JUDICATA IS NOT APPLICABLE TO CLAIMS OF PLAIN ERROR BROUGHT TO
THE COURT UNDER CRIM.R. 52(B)."
{¶8} Appellant claims the trial court erred in not recognizing his petition to
modify and/or reduce sentences as a motion to withdraw his pleas under Crim.R. 32.1.
We disagree.
{¶9} Nowhere in his petition did appellant allude to withdrawing his pleas.
{¶10} In his appellate brief, appellant argues the trial court should have treated
his petition as a motion to withdraw his pleas because his sentences were void or
voidable as they were erroneously ordered to be served consecutively. In support of his
argument, appellant cites this court to State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio- Licking County, Case No. 11-CA-134 4
1577. The Boswell case involved void sentences for failure to include postrelease
control. Appellant's case did not involve the failure to impose postrelease control.
{¶11} Upon review, we find the trial court did not err in not recognizing
appellant's petition to modify and/or reduce sentences as a motion to withdraw his pleas
under Crim.R. 32.1.
{¶12} Assignment of Error I is denied.
{¶13} Appellant claims the trial court erred in not merging two of the possession
counts and sentencing him to consecutive sentences.
{¶14} Appellant was charged with three counts of possessing drugs, one for
heroin, one for cocaine, and one for marijuana. In his petition to modify and/or reduce
sentence, appellant argued because he consumed a compound mixture of heroin and
cocaine called a "speedball," he did not intend to commit more than one crime and there
was not a separate animus for both offenses; therefore these two possession counts
were allied offenses of similar import and they should have been merged for sentencing
purposes. Appellant also argued the length of his sentences were severe.
{¶15} We note appellant did not attach any supporting affidavits to his petition.
Blood and urine samples taken from appellant after his arrest indicated he had
consumed heroin, cocaine, and marijuana. December 7, 2009 T. at 10.
{¶16} Appellant never filed a direct appeal of his convictions. Although appellant
did file an appeal on January 15, 2010, this court dismissed the appeal for want of
jurisdiction. State v. Hickman, Licking App. No. 2010-CA-11, 2010-Ohio-4445.
Appellant did not pursue any further appeals. Licking County, Case No. 11-CA-134 5
{¶17} As stated by the Supreme Court of Ohio in State v. Perry (1967), 10 Ohio
St.2d 175, paragraphs eight and nine of the syllabus, the doctrine of res judicata is
applicable to petitions for postconviction relief. The Perry court explained the doctrine
at 180-181 as follows:
{¶18} "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 which resulted in that judgment of
conviction or on an appeal from that judgment."
{¶19} Appellant never challenged the failure to merge his offenses due to allied
offenses of similar import or the severity of his sentences on direct appeal. Nothing
precluded appellant from pursuing these arguments on direct appeal.
{¶20} As for appellant's arguments regarding plain error, appellant "cannot
employ the plain error rule to circumvent the doctrine of res judicata." State v. Evans
(May 16, 1990), Lorain App. No. 89CA004587.
{¶21} Further, any challenges to the consecutive nature of his sentences
pursuant to H.B. No. 86 are improper, as appellant was sentenced on December 7,
2009 and H.B. No. 86 became effective on September 30, 2010. H.B. No. 86 is not to
be applied retroactively. State v. Fields, Muskingum App. No. CT11-0037, 2011-Ohio-
6044, ¶9-11.
{¶22} Assignment of Error II is denied. Licking County, Case No. 11-CA-134 6
{¶23} Appellant claims the trial court erred in denying his petition without a
hearing and invoking the doctrine of res judicata. We disagree.
{¶24} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)
states the following in pertinent part:
{¶25} "Before granting a hearing on a petition filed under division (A) of this
section, the court shall determine whether there are substantive grounds for relief. In
making such a determination, the court shall consider, in addition to the petition, the
supporting affidavits, and the documentary evidence, all the files and records pertaining
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[Cite as State v. Hickman, 2012-Ohio-3050.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. John W. Wise, J. -vs- : : THOMAS T. HICKMAN : Case No. 11-CA-134 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09CR332
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 29, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BRIAN T. WALTZ THOMAS HICKMAN, PRO SE 20 South Second Street Inmate #618258 4th Floor Chillicothe Correctional Institution Newark, OH 43055 P.O. Box 5500 Chillicothe, OH 45601 Licking County, Case No. 11-CA-134 2
Farmer, J.
{¶1} On July 17, 2009, the Licking County Grand Jury indicted appellant,
Thomas Hickman, on one count of felony fleeing in violation of R.C. 2921.331, three
counts of possession of drugs in violation of R.C. 2925.11, and one count of tampering
with evidence in violation of R.C. 2921.12.
{¶2} On December 7, 2009, appellant pled no contest to the felony fleeing
count and guilty to the possession counts, and the tampering count was dismissed. By
judgment entry filed same date, the trial court found appellant guilty of the felony fleeing
count and sentenced him to an aggregate term of three years and ten months in prison,
plus an additional twenty-five months of postrelease control time from a prior case.
{¶3} On November 22, 2011, appellant filed a petition to modify and/or reduce
sentences. By judgment entry filed November 30, 2011, the trial court denied the
petition.
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ERRORED (SIC) BY NOT RECOGNIZING THE
DEFENDANT'S PETITION TO MODIFY AND/OR REDUCE SENTENCES AS PRE-
SENTENCE MOTION TO WITHDRAW HIS PLEA UNDER CRIM.R. 32.1 BECAUSE
DEFENDANT WAS GIVEN A VOID OR VOIDABLE SENTENCE IT SHOULD HAVE
BEEN CONSIDERED A NULLITY AND BEEN VACATED AND DEFENDANT
SUBSEQUENTLY RESENTENCED." Licking County, Case No. 11-CA-134 3
II
{¶6} "THE TRIAL COURT ERRORED (SIC) AND ABUSED ITS DISCRETION
BY REFUSING TO CORRECT A PLAIN ERROR THAT OCCURRED AT
SENTENCING WHERE APPELLANT WAS GIVEN CONSECUTIVE SENTENCES ON
ALLIED OFFENSES OF SIMILAR IMPORT THAT SHOULD HAVE BEEN MERGED."
III
{¶7} "THE TRIAL COURT ERRORED (SIC) AND ABUSED ITS DISCRETION
WHEN IT ARBITRARILY DISMISSED THE DEFENDANT'S PETITION TO CORRECT
PLAIN ERROR, WITHOUT A HEARING AND WITHOUT RULING UPON THE ISSUES
PRESENTED IN THE PETITION TO CORRECT PLAIN ERROR, BY ESSENTIALLY
INVOKING THE DOCTRINE OF RES JUDICATA WHEN IN FACT THE DOCTRINE OF
RES JUDICATA IS NOT APPLICABLE TO CLAIMS OF PLAIN ERROR BROUGHT TO
THE COURT UNDER CRIM.R. 52(B)."
{¶8} Appellant claims the trial court erred in not recognizing his petition to
modify and/or reduce sentences as a motion to withdraw his pleas under Crim.R. 32.1.
We disagree.
{¶9} Nowhere in his petition did appellant allude to withdrawing his pleas.
{¶10} In his appellate brief, appellant argues the trial court should have treated
his petition as a motion to withdraw his pleas because his sentences were void or
voidable as they were erroneously ordered to be served consecutively. In support of his
argument, appellant cites this court to State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio- Licking County, Case No. 11-CA-134 4
1577. The Boswell case involved void sentences for failure to include postrelease
control. Appellant's case did not involve the failure to impose postrelease control.
{¶11} Upon review, we find the trial court did not err in not recognizing
appellant's petition to modify and/or reduce sentences as a motion to withdraw his pleas
under Crim.R. 32.1.
{¶12} Assignment of Error I is denied.
{¶13} Appellant claims the trial court erred in not merging two of the possession
counts and sentencing him to consecutive sentences.
{¶14} Appellant was charged with three counts of possessing drugs, one for
heroin, one for cocaine, and one for marijuana. In his petition to modify and/or reduce
sentence, appellant argued because he consumed a compound mixture of heroin and
cocaine called a "speedball," he did not intend to commit more than one crime and there
was not a separate animus for both offenses; therefore these two possession counts
were allied offenses of similar import and they should have been merged for sentencing
purposes. Appellant also argued the length of his sentences were severe.
{¶15} We note appellant did not attach any supporting affidavits to his petition.
Blood and urine samples taken from appellant after his arrest indicated he had
consumed heroin, cocaine, and marijuana. December 7, 2009 T. at 10.
{¶16} Appellant never filed a direct appeal of his convictions. Although appellant
did file an appeal on January 15, 2010, this court dismissed the appeal for want of
jurisdiction. State v. Hickman, Licking App. No. 2010-CA-11, 2010-Ohio-4445.
Appellant did not pursue any further appeals. Licking County, Case No. 11-CA-134 5
{¶17} As stated by the Supreme Court of Ohio in State v. Perry (1967), 10 Ohio
St.2d 175, paragraphs eight and nine of the syllabus, the doctrine of res judicata is
applicable to petitions for postconviction relief. The Perry court explained the doctrine
at 180-181 as follows:
{¶18} "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 which resulted in that judgment of
conviction or on an appeal from that judgment."
{¶19} Appellant never challenged the failure to merge his offenses due to allied
offenses of similar import or the severity of his sentences on direct appeal. Nothing
precluded appellant from pursuing these arguments on direct appeal.
{¶20} As for appellant's arguments regarding plain error, appellant "cannot
employ the plain error rule to circumvent the doctrine of res judicata." State v. Evans
(May 16, 1990), Lorain App. No. 89CA004587.
{¶21} Further, any challenges to the consecutive nature of his sentences
pursuant to H.B. No. 86 are improper, as appellant was sentenced on December 7,
2009 and H.B. No. 86 became effective on September 30, 2010. H.B. No. 86 is not to
be applied retroactively. State v. Fields, Muskingum App. No. CT11-0037, 2011-Ohio-
6044, ¶9-11.
{¶22} Assignment of Error II is denied. Licking County, Case No. 11-CA-134 6
{¶23} Appellant claims the trial court erred in denying his petition without a
hearing and invoking the doctrine of res judicata. We disagree.
{¶24} R.C. 2953.21 governs petitions for postconviction relief. Subsection (C)
states the following in pertinent part:
{¶25} "Before granting a hearing on a petition filed under division (A) of this
section, the court shall determine whether there are substantive grounds for relief. In
making such a determination, the court shall consider, in addition to the petition, the
supporting affidavits, and the documentary evidence, all the files and records pertaining
to the proceedings against the petitioner, including, but not limited to, the indictment, the
court's journal entries, the journalized records of the clerk of the court, and the court
reporter's transcript.***If the court dismisses the petition, it shall make and file findings
of fact and conclusions of law with respect to such dismissal."
{¶26} The trial court denied appellant's petition without hearing, finding "the
defendant was sentenced December 7, 2009 and the defendant indeed prosecuted an
appeal. These issues could have or were raised on appeal." Judgment Entry filed
November 30, 2011.
{¶27} While the trial court did not make specific findings of fact and conclusions
of law per se, the trial court clearly stated its reasoning for denying the petition. As per
our decision in Assignment of Error II, we concur with the trial court's determination. "A
petition for postconviction relief may be dismissed without an evidentiary hearing when
the claims raised are barred by the doctrine of res judicata." State v. Marcum (July 27,
1998), Butler App. No. CA96-12-266, citing State v. Perry, supra. Licking County, Case No. 11-CA-134 7
{¶28} Upon review, we find the trial court did not err in denying appellant's
petition without hearing.
{¶29} Assignment of Error III is denied.
{¶30} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By Farmer, J.
Hoffman, P.J. and
Wise, J. concur.
s/ Sheila G. Farmer__________________
_s/ William B. Hoffman ______________
_s/ John W. Wise___________________
JUDGES
SGF/sg 615 Licking County, Case No. 11-CA-134 8
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : THOMAS T. HICKMAN : : Defendant-Appellant : CASE NO. 11-CA-134
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio is affirmed. Costs to
appellant.