State v. Petitto, 2013 Ohio 5435

Petitto, indicted on 48 counts including rape/kidnapping of two victims under 13, pleaded guilty to two amended rape counts; remaining counts nolled.
Trial court sentenced Petitto on April 7, 2010 to four years per count, consecutive for eight years total, with mandatory five-year postrelease control and Tier III designation.
We vacated the plea and remanded for a new sentencing hearing in State v. Petitto, 8th Dist. Cuyahoga No. 95276, 2011-Ohio-2391.
On November 16, 2011, after remand, the trial court resentenced Petitto to consecutive four-year terms and advised of three-year postrelease control.
On September 12, 2012, Petitto petitioned to modify sentences to concurrent; the trial court denied on April 23, 2013; Petitto appealed.
The sole assigned error contends the court erred in denying the modification request; the State argues finality and res judicata bar relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by denying a modification to concurrent sentences	Petitto argues due process and need for concurrent terms.	State contends finality and lack of authority to modify final judgment.	Claim barred by res judicata; final judgment cannot be modified.

State v. Carlisle, 131 Ohio St.3d 127, 961 N.E.2d 671 (2011) (required statutory findings when imposing more than the minimum sentence)
State v. Lester, 130 Ohio St.3d 303, 958 N.E.2d 142 (2011) (final judgment consists of conviction, sentence, signature, and journal entry)
Rocky River v. Garnek, 8th Dist. Cuyahoga No. 97540, 2012-Ohio-3079 (2012) (finality and authority to modify sentences)
State v. Thomas, 8th Dist. Cuyahoga No. 97185, 2012-Ohio-2626 (2012) (sentencing modification authority post-final judgment)
State v. Kelly, 8th Dist. Cuyahoga No. 97673, 2012-Ohio-2930 (2012) (res judicata applies to claims that could have been raised on appeal)