State v. Kelly ( 2012 )


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  • [Cite as State v. Kelly, 
    2012-Ohio-2930
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 97673
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    GENE KELLY
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-385934
    BEFORE: Stewart, P.J., Celebrezze, J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED:                    June 28, 2012
    ATTORNEY FOR APPELLANT
    John A. Powers
    The Powers Law Firm, LLC
    700 W. St. Clair Avenue, Suite 214
    Cleveland, OH 44113
    ATTORNEYS FOR APPELLEE
    William D. Mason
    Cuyahoga County Prosecutor
    BY: Daniel T. Van
    Assistant County Prosecutor
    The Justice Center
    1200 Ontario Street, 8th Floor
    Cleveland, OH 44113
    MELODY J. STEWART, P.J.:
    {¶1} Defendant-appellant Gene Kelly appeals from an order that denied his motion
    to correct an illegal sentence. Kelly was convicted in July 2000 on counts of aggravated
    burglary, aggravated robbery, kidnapping, possession of criminal tools, conspiracy, and
    having a weapon under disability.     We affirmed his conviction and sentence in State v.
    Kelly, 8th Dist. No. 78422, 
    2001 WL 824259
     (July 12, 2001). In October 2011, Kelly
    filed a motion to correct his sentence, arguing that all of the offenses were allied offenses
    of similar import that should have merged for sentencing. The court treated Kelly’s
    motion as a petition for postconviction relief and found it untimely. It also held that
    Kelly’s allied offenses argument was barred by res judicata because he failed to raise the
    allied offenses argument on direct appeal. Kelly’s assignment of error contests these
    rulings.
    I
    {¶2} Kelly argues that the failure to merge allied offenses for sentencing renders
    the sentence void. He analogizes his sentencing on allied offenses to sentences that have
    been found void because the court failed to impose a required term of postrelease control.
    {¶3} The duty to advise an offender of postrelease control derives from the basic
    premise that a sentence that “disregard[s] statutory requirements” is a “nullity or void.”
    State v. Beasley, 
    14 Ohio St.3d 74
    , 75, 
    471 N.E.2d 774
     (1984). Postrelease control is a
    creation of statute, so the failure to impose a required term of postrelease control for an
    offense renders the sentence for that offense void. State v. Bezak, 
    114 Ohio St.3d 94
    ,
    
    2007-Ohio-3250
    , 
    868 N.E.2d 961
    , syllabus.
    {¶4} The Supreme Court recently considered the effect of a failure to impose a
    statutorily-mandated driver’s license suspension. Consistent with the principles stated in
    Bezak, it held that “[t]he failure to include a mandatory driver’s license suspension as part
    of an offender’s sentence renders that part of the sentence void.” State v. Harris, ___
    Ohio St.3d ___, 
    2012-Ohio-1908
    , ___ N.E.2d ___, at paragraph one of the syllabus.
    {¶5} The failure to merge allied offenses for sentencing is a violation of R.C.
    2941.25. State v. Underwood, 
    124 Ohio St.3d 365
    , 
    2010-Ohio-1
    , 
    922 N.E.2d 923
    , ¶ 26.
    However, Underwood did not use the word “void” when referring to sentences in which
    allied offenses were not merged, instead characterizing them as either “contrary to law”
    or “not authorized by law.” This characterization was consistent with Supreme Court
    precedent that held that the voidness doctrine in criminal cases was “limited to a discrete
    vein of cases: those in which a court does not properly impose a statutorily mandated
    period of postrelease control.” State v. Fischer, 
    128 Ohio St.3d 92
    , 
    2010-Ohio-6238
    ,
    
    942 N.E.2d 332
    , ¶ 31. Harris arguably extended the voidness doctrine to cases in which
    the sentencing court failed to impose a statutorily-mandated license suspension, finding
    that the “same logic” it applied in postrelease control cases applied to cases involving the
    failure to impose a mandatory driver’s license suspension. Harris, ___ Ohio St.3d ___,
    
    2012-Ohio-1908
    , ___ N.E.2d ___, at ¶ 15-16. However, Underwood did not apply the
    voidness doctrine to allied offenses analyses even though it had the opportunity to do so.
    So we decline to extend it here. We continue to hold that the failure to merge allied
    offenses at sentencing does not render a sentence void.
    II
    {¶6} Even if we were to find that the failure to merge allied offenses for
    sentencing rendered Kelly’s sentence void, he would nonetheless be bound by the
    jurisdictional requirements of the postconviction relief statute.
    {¶7} Claims that offenses are allied invoke the protections of the Double Jeopardy
    Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I
    of the Ohio Constitution. Underwood, 
    124 Ohio St.3d 365
     
    2010-Ohio-1
    , 
    922 N.E.2d 923
    , at ¶ 23; see also United States v. Halper, 
    490 U.S. 435
    , 440, 
    109 S.Ct. 1892
    , 
    104 L.Ed.2d 487
     (1989), citing North Carolina v. Pearce, 
    395 U.S. 711
    , 717, 
    89 S.Ct. 2072
    ,
    
    23 L.Ed.2d 656
     (1969).          Ohio’s postconviction statute, R.C. 2953.21(A)(1)(a),
    specifically applies to any person who has been convicted of a criminal offense and
    claims a denial or infringement of his rights “as to render the judgment void or voidable
    under the Ohio Constitution or the Constitution of the United States[.]” (Emphasis
    added.)
    {¶8} A motion to correct an illegal sentence is “an appropriate vehicle for raising
    the claim that a sentence is facially illegal at any time.” Harris, ___ Ohio St.3d ___,
    
    2010-Ohio-1908
    , ___ N.E.2d ___, ¶ 17. “Where a criminal defendant, subsequent to his
    or her direct appeal, files a motion seeking vacation or correction of his or her sentence
    on the basis that his or her constitutional rights have been violated, such a motion is a
    petition for postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 
    79 Ohio St.3d 158
    , 
    679 N.E.2d 1131
     (1997), syllabus; State v. Young, 6th Dist. No. E-08-041,
    
    2009-Ohio-1118
    , ¶ 16; State v. Cale, 11th Dist. No. 2000-L-034, 
    2001 WL 285794
     (Mar.
    23, 2001).
    {¶9} A petition for postconviction relief that claims a violation of a constitutional
    right must be filed no later than 180 days after the date on which the trial transcript is
    filed in the court of appeals in the direct appeal of the judgment of conviction. R.C.
    2953.21(A)(2). This time limitation is jurisdictional. State v. Johns, 8th Dist. No.
    93226, 
    2010-Ohio-162
    , ¶ 8.
    {¶10} An exception to the time limit exists if (1) it can be shown both that
    petitioner was unavoidably prevented from discovering the facts relied on in the claim for
    relief or that the United States Supreme Court recognized a new federal or state right that
    applies retroactively to persons in the petitioner’s situation, and the petition asserts a
    claim based on that right; or (2) there is clear and convincing evidence that but for the
    constitutional error at trial no reasonable trier of fact would have found the petitioner
    guilty of the offense. R.C. 2953.21(A)(1).
    {¶11} Kelly filed the transcript in his direct appeal in September 2000; he did not
    file his petition for postconviction relief until October 2011.     More than 180 days
    elapsed, so his motion to correct an illegal sentence, treated as a petition for
    postconviction relief, was facially untimely. State v. Timmons, 10th Dist. No. 11AP-895,
    
    2012-Ohio-2079
    , ¶ 6.
    {¶12} None of the exceptions to R.C. 2953.21(A)(1) apply to extend the time
    requirement. Kelly did not assert that he had been unavoidably prevented from raising
    the issue of allied offenses in his direct appeal, and there were no intervening decisions by
    the United States Supreme Court bearing on the issue of allied offenses that recognized a
    new right applicable to the states.         State v. Alexander, 8th Dist. No. 95995,
    
    2011-Ohio-1380
    , ¶ 15. Finally, Kelly could not establish the second exception to the
    time limit because an alleged sentencing error would have no effect on his guilt or
    innocence on the charged offenses. State v. Rivers, 12th Dist. No. CA2006-08-092,
    
    2007-Ohio-2442
    , ¶ 6.
    III
    {¶13} Had Kelly filed a timely petition for postconviction relief, we would find
    that principles of res judicata bar Kelly from asserting in a petition for postconviction
    relief that his convictions were allied offenses of similar import that should have merged
    for sentencing.
    A
    {¶14} Kelly’s allied offenses argument is premised on the new analysis set forth in
    State v. Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    , in which the
    Ohio Supreme Court established the test as “whether it is possible to commit one offense
    and commit the other with the same conduct[.]” Id. at ¶ 48. But Kelly’s conviction
    predated Johnson by ten years — the test in place at the time of his conviction was that
    set forth in State v. Rance, 
    85 Ohio St.3d 632
    , 
    710 N.E.2d 699
     (1999). Rance required
    the courts to compare the elements of each offense in the abstract, with no reference to
    the particular facts of the case, to determine whether the commission of one offense
    would necessarily result in the commission of the other offense. Kelly cannot rely on
    Johnson as support for his argument when it was the Rance test in place at the time of his
    conviction. State v. Szefcyk, 
    77 Ohio St.3d 93
    , 96, 
    671 N.E.2d 233
     (1996) (finding “no
    merit to appellee’s claim that res judicata has no application where there is a change in
    the law due to a judicial decision of this court”).
    {¶15} Applying the Rance test, the elements of aggravated burglary, aggravated
    robbery, kidnapping, possession of criminal tools, conspiracy, and having a weapon under
    disability do not correspond to the degree that the commission of any one of those
    offenses necessarily resulted in the commission of the other. See, e.g., State v. Moore,
    8th Dist. No. 79353, 
    2002-Ohio-2133
    , ¶ 50 (aggravated robbery and aggravated burglary
    not allied offenses); State v. Christian, 8th Dist. No. 58660, 
    1991 WL 106041
     (June 13,
    1991) (possession of criminal tools and having a weapon under disability not allied
    offenses). Under the law existing at the time of his conviction, none of the offenses were
    allied offenses of similar import, so Kelly could not prevail on his substantive claim of
    error.
    B
    {¶16} In addition to Kelly’s failure to prove the merits of his claim, a broader point
    exists — that Kelly’s failure to raise an allied offenses argument on direct appeal barred
    him from doing so at a later time.
    {¶17} In State v. Perry, 
    10 Ohio St.2d 175
    , 
    226 N.E.2d 104
     (1967), paragraph nine
    of the syllabus states:
    Under the doctrine of res judicata, a final judgment of conviction
    bars a convicted defendant who was represented by counsel 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.
    {¶18} In State v. Castro, 8th Dist. No. 97451, 
    2012-Ohio-2206
    , we recently
    reaffirmed a line of decisions holding that a failure to raise an allied offenses argument on
    direct appeal bars any attempt to raise an allied offenses argument in a petition for
    postconviction relief. 
    Id.
     at ¶ 7 (citing cases).     Kelly had the opportunity to raise an
    allied offenses argument on direct appeal but failed to do so. The court correctly found
    that principles of res judicata barred the assertion of those claims in the petition for
    postconviction relief.
    {¶19} Judgment affirmed.
    It is ordered that appellee recover of appellant its costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the Cuyahoga
    County Court of Common Pleas to carry this judgment into execution.               A   certified
    copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of
    Appellate Procedure.
    MELODY J. STEWART, PRESIDING JUDGE
    FRANK D. CELEBREZZE, JR., J., and
    EILEEN A. GALLAGHER, J., CONCUR