State v. Evans, 2015 Ohio 3878

Terry Dave Evans was convicted by a jury of attempted murder, two counts of felonious assault (merged into the attempted murder), kidnapping, tampering with evidence, disrupting public services, and possessing criminal tools.
At initial sentencing the trial court imposed consecutive terms: 11 years (attempted murder), 6 years (kidnapping), 2 years (tampering), 1 year (disrupting public services), and 1 year (possessing criminal tools), totaling 21 years.
On direct appeal this court held the trial court failed to make the statutory findings required for consecutive sentences and reversed and remanded for resentencing limited to that issue.
On remand the trial court held a resentencing hearing, incorporated earlier findings, added the required consecutive-sentence disproportionate finding, again imposed consecutive terms totaling 21 years, and explained the brutality of Evans’s conduct (choking, stabbing, pouring chlorine on the victim).
Evans appealed the resentencing, raising for the first time the argument that attempted murder and kidnapping were allied offenses that should have merged for sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Evans can raise allied-offenses merger at resentencing	State: the claim is barred by res judicata because it was not raised on direct appeal	Evans: attempted murder and kidnapping are allied offenses and should have merged	Court: Claim barred by res judicata; even on merits Evans forfeited all but plain error and made no plain-error showing, so assignment of error overruled

State v. Reynolds, 79 Ohio St.3d 158 (1997) (res judicata bars issues that could have been raised on direct appeal)
State v. Perry, 10 Ohio St.2d 175 (1967) (foundational Ohio rule on res judicata and postconviction relief)
State v. Comen, 50 Ohio St.3d 206 (1990) (failure to raise allied-offenses at sentencing forfeits all but plain error)
State v. Barnes, 94 Ohio St.3d 21 (2002) (plain-error standard requires obvious error affecting substantial rights)