State v. McCreery, 2015 Ohio 5453

Nicholas McCreery pled guilty (Jan 2010) to three counts of burglary (second-degree felonies) and one count of resisting arrest (misdemeanor); the trial court sentenced him to consecutive terms and erred at the initial hearing by misstating post-release control.
The trial court held a re‑sentencing in April 2010 to correct the post‑release control notification; McCreery appealed and this court affirmed in State v. McCreery, 4th Dist. No. 10CA17 (McCreery I).
In March 2015 McCreery filed a pro se “Motion for Re‑Sentencing Based on Void Judgment,” arguing (1) the court failed to notify him under R.C. 2947.23(A)(1)(a) that unpaid costs could lead to community service, (2) the court did not consider his present/future ability to pay under R.C. 2929.19(B)(6), and (3) trial counsel was ineffective for failing to object to imposition/notification of costs.
The trial court overruled the motion (April 22, 2015) for lack of jurisdiction; McCreery timely appealed that denial.
The Fourth District treated the motion as a post‑conviction type challenge and held all claims were barred by res judicata (they could have been raised on direct appeal and did not render the judgment void).
Judgment affirmed; the court explained that failure to give the community‑service notice renders a sentence voidable (not void), so res judicata applies to bar the late attack.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether failure to notify under R.C. 2947.23(A)(1)(a) that unpaid costs may result in community service renders the judgment void	State: The error (if any) is not a jurisdictional defect and is subject to res judicata because it could have been raised on direct appeal	McCreery: The omission made the sentence void, allowing attack at any time	Court: Error relating to court‑cost notice is voidable, not void; res judicata bars the claim
Whether trial court failed to consider present/future ability to pay before imposing financial sanctions (R.C. 2929.19/2929.18)	State: Ability‑to‑pay arguments could and should have been raised on direct appeal; barred now by res judicata	McCreery: Court failed to consider his indigence and thus imposed improper fines/costs	Court: Issue could have been raised on direct appeal and is barred by res judicata
Whether counsel was ineffective for not objecting to costs/notifications	State: Ineffective‑assistance claim either was or could have been raised on direct appeal and is therefore barred	McCreery: Counsel failed to object, rendering plea/sentence involuntary	Court: Claim is barred by res judicata; no relief on post‑conviction motion

State v. Joseph, 125 Ohio St.3d 76 (Ohio 2010) (failure to inform defendant about court costs does not void entire sentence)
State v. Reynolds, 79 Ohio St.3d 158 (Ohio 1997) (post‑conviction petition defined where defendant alleges constitutional violations)
State v. Perry, 10 Ohio St.2d 175 (Ohio 1967) (res judicata bars issues that were or could have been raised on direct appeal)
State v. Szefcyk, 77 Ohio St.3d 93 (Ohio 1996) (res judicata applies in post‑conviction proceedings)
State v. Nichols, 11 Ohio St.3d 40 (Ohio 1984) (res judicata principles in criminal appeals)