State v. Townsend , 2012 Ohio 496 ( 2012 )

[Cite as State v. Townsend, 2012-Ohio-496.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97214
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARLON TOWNSEND
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-443923
BEFORE: Keough, J., Cooney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: February 9, 2012
FOR APPELLANT
Marlon Townsend, pro se
Inmate No. 502-596
Lake Erie Correctional Institution
501 Thompson Road
P.O. Box 8000
Conneaut, OH 44030
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} Defendant-appellant, Marlon Townsend, pro se, appeals the trial court’s
judgment denying his motion to vacate a void sentence. Because the issue is barred by
the doctrine of res judicata, we affirm.
I. Procedural History
{¶ 2} In February 2006, Townsend was convicted of two counts of drug
trafficking and one count of possession of drugs, all counts carrying a major drug
offender specification. The trial court sentenced him to a ten-year prison term on each
count, and ordered the terms to run concurrently with each other and the prison terms
imposed in two other cases.
{¶ 3} This court affirmed Townsend’s convictions on appeal. State v. Townsend,
8th Dist. No. 88065, 2007-Ohio-2370, 2007 WL 1445951. The Supreme Court of Ohio
denied Townsend’s motion for leave to appeal and dismissed the appeal as not involving
any substantial constitutional question. State v. Townsend, 115 Ohio St.3d 1442,
2007-Ohio-5567, 875 N.E.2d 103. This court subsequently denied Townsend’s
application for reopening. State v. Townsend, 8th Dist. No. 88065, 2007-Ohio-6638,
2007 WL 4340866.
{¶ 4} In January 2010, Townsend filed a motion to vacate a void judgment, which
the trial court denied. This court affirmed the trial court’s denial of Townsend’s motion.
State v. Townsend, 8th Dist. No. 94754, 2010-Ohio-5147, 2010 WL 4181612.
{¶ 5} On June 23, 2011, Townsend filed a motion to vacate a void sentence,
which the trial court subsequently denied. Townsend now appeals from the trial court’s
judgment denying the motion to vacate a void sentence.
II. Allied Offenses
{¶ 6} Townsend argues on appeal that the trial court erred in denying his motion
to vacate a void sentence because drug trafficking and drug possession are allied offenses
that should have merged for sentencing and, therefore, the trial court erred in imposing a
sentence on each count. Townsend’s argument is barred by res judicata, however,
because he did not raise the issue on direct appeal.
{¶ 7} It is well established that res judicata bars the consideration of issues that
could have been raised on direct appeal. State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 826 N.E.2d 824, ¶ 16-17. This court has recognized that the issue of
whether two offenses constitute allied offenses subject to merger must be raised on direct
appeal from a conviction, or res judicata will bar a subsequent attempt to raise the issue.
State v. Poole, 8th Dist. No. 94759, 2011-Ohio-716, 2011 WL 578564, ¶ 13 (“[T]he
question of whether the verdicts on all counts can be used to support separate convictions
for all offenses charged is decided by the trial court prior to its determination of a
defendant’s sentence. Thus, we now consider the issue settled and hold that the time to
challenge a conviction based on allied offenses is through a direct appeal * * *.”).
{¶ 8} Consequently, where a defendant has not raised the issue on direct appeal,
this court has rejected subsequent claims of improper sentencing on allied offenses as
barred by res judicata. See, e.g., State v. Goldsmith, 8th Dist. No. 95073,
2011-Ohio-840, 2011 WL 676167, ¶ 11 (“Because [defendant] failed to raise on direct
appeal from his conviction the issue concerning whether the offenses challenged herein
are allied offenses of similar import subject to merger, we find that the issue is barred by
the doctrine of res judicata.”); State v. Padgett, 8th Dist. No. 95065, 2011-Ohio-1927,
2011 WL 1584084, ¶ 8, citing State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104(1967) (“Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceedings, 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 that resulted in that judgment of conviction
or on an appeal from that judgment. * * * [T]he proper avenue for appellant’s merger
challenge would have been a direct appeal from his 1999 sentencing.”). See also State v.
Woods, 8th Dist. No. 96487, 2011-Ohio-5825, 2011 WL 5506095; State v. Franklin, 8th
Dist. No. 95991, 2011-Ohio-4953, 2011 WL 4485925; State v. Ballou, 8th Dist. No.
95733, 2011-Ohio-2925, 2011 WL 2436504.
{¶ 9} Here, Townsend argued on direct appeal that the evidence was not
sufficient to support his convictions and that the verdict was against the manifest weight
of the evidence. He raised no issue regarding his sentence or allied offenses.
Accordingly, any argument with respect to allied offenses is barred by the doctrine of res
judicata. Thus, the court did not err in denying Townsend’s motion to vacate a void
sentence and his assignment of error is overruled.
Affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court 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.
KATHLEEN ANN KEOUGH, JUDGE
COLLEEN CONWAY COONEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR