State v. Tisdale , 2019 Ohio 73 ( 2019 )

[Cite as State v. Tisdale, 2019-Ohio-73.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0022
- vs - :
SHANE TISDALE, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 07 CR
147.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-0192 (For Plaintiff-Appellee).
Shane Tisdale, pro se, PID: A523-979, London Correctional Institution, 1580 State
Route 56, S.W., Landon, OH 43140 (Defendant-Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Shane Tisdale, appeals the trial court’s denial of his post-
sentence motion to vacate his sentence. We affirm.
{¶2} In March of 2007, Tisdale pleaded guilty to one count of robbery, eleven
counts of aggravated robbery, and ten counts of kidnapping. The trial court imposed the
parties’ jointly recommended sentence, eight years on count one and ten years on each
remaining count to run concurrent with one another, but consecutive to the eight-year
sentence for robbery, for an aggregate prison term of 18 years.
{¶3} In December of 2007, we permitted Tisdale to file a delayed appeal, and he
raised two assignments of error, ineffective assistance of counsel and that the court
imposed an excessive sentence. He did not raise a merger argument. We subsequently
dismissed the appeal for lack of jurisdiction to review an imposed, jointly recommended
sentence pursuant to R.C. 2953.08(D)(1). State v. Tisdale, 11th Dist. Trumbull No. 2007-
T-0122, 2008-Ohio-5452, ¶12, 14 (“Tisdale I”).
{¶4} In February of 2017, Tisdale moved to vacate his sentence as void because
the court imposed sentence for multiple offenses of similar import that should have
merged. The trial court overruled his motion.
{¶5} Tisdale raises one assignment of error:
{¶6} “The trial court erred when it did not find that multiple offenses were allied
offenses of similar import.”
{¶7} He argues that his sentence is void because the court had a mandatory duty
to merge his convictions as a matter of law pursuant to R.C. 2941.25(A).
{¶8} Contrary to Tisdale’s argument, any error regarding merger renders the
original sentencing judgment voidable, not void. State v. Simmons, 11th Dist. Lake No.
2012-L-025, 2012-Ohio-4470, ¶20.
{¶9} “‘In general, a void judgment is one that has been imposed by a court that
lacks subject-matter jurisdiction over the case or the authority to act. State v. Payne, 114
Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. Unlike a void judgment, a
voidable judgment is one rendered by a court that has both jurisdiction and authority to
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act, but the court's judgment is invalid, irregular, or erroneous.’ State v. Simpkins, 117
Ohio St. 3d 420, 2008-Ohio-1197, 884 N.E.2d 568, at ¶12.” State v. Fischer, 128 Ohio
St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶6.
{¶10} A void judgment renders the judgment a nullity, “and the parties are in the
same position as if there had been no judgment.” Id. at ¶12.
{¶11} “[I]f a judgment is void, the doctrine of res judicata has no application, and
the propriety of the decision can only be challenged on direct appeal or by collateral
attack. * * * If a judgment in question is merely voidable, though, the doctrine of res
judicata does apply, and any argument regarding the merits of the decision is considered
waived for all purposes unless it is asserted as part of the direct appeal. State v.
Parson, 2nd Dist. No. 24641, 2012-Ohio-730, ¶10.” State ex rel. Porterfield v. McKay,
11th Dist. Trumbull No. 2012-T-0012, 2012-Ohio-5027, ¶13, cause dismissed, 134 Ohio
St.3d 1443, 2013-Ohio-310, 982 N.E.2d 723; accord State v. Payne, 114 Ohio St. 3d 502,
2007-Ohio-4642, ¶30.
{¶12} Here, Tisdale was required to raise merger in his direct appeal because any
error regarding merger of his charges would render the original sentencing judgment
voidable. Since he did not advance a merger argument in his direct appeal, res judicata
bars Tisdale from raising the issue in a post-sentence motion. State v. Simmons, 11th
Dist. Lake No. 2012-L-025, 2012-Ohio-4470; State v. Britta, 11th Dist. Lake No. 2011-L-
041, 2011-Ohio-6096; State v. Stalnaker, 11th Dist. Lake No. 2013-L-006, 2013-Ohio-
3479, ¶12.
{¶13} Since our decision in Tisdale I, the Ohio Supreme Court has held that
“[w]hen a sentence is imposed for multiple convictions on offenses that are allied offenses
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of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D)(1) does not bar
appellate review of that sentence even though it was jointly recommended by the parties
and imposed by the court.” (Emphasis added.) State v. Underwood, 124 Ohio St. 3d 365,
2010-Ohio-1, 922 N.E.2d 923, paragraph one of the syllabus. However, a defendant only
has the right to raise merger in a direct appeal and must demonstrate plain error. Id. at
¶29-31.
{¶14} Unlike the defendant in Underwood, Tisdale did not raise merger on direct
appeal, and as such, it is barred by res judicata.
{¶15} Tisdale’s sole assignment of error lacks merit, and the trial court’s decision
is affirmed.
TIMOTHY P. CANNON, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶16} Initially, I note that robbery and kidnapping may be allied offenses of similar
import when the restraint of the victim is merely incidental to the robbery. State v.
Taogaga, 165 Ohio App. 3d 775, 2006-Ohio-692, ¶21 (8th Dist.), citing State v. Logan,
60 Ohio St. 2d 126, 130-131 (1979); State v. Jones, 8th Dist. Cuyahoga No. 61279, 1992
WL 369257 (Dec. 10., 1992); State v. Burks, 8th Dist. Cuyahoga No. 58975, 1991 WL
17493 (Aug. 29, 1991).
{¶17} In the lead case of Underwood, supra, at ¶23-26, the court held:
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{¶18} “R.C. 2941.25 codifies 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, which prohibits multiple punishments for the same offense. The statute
states:
{¶19} “‘(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶20} “‘(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment or
information may contain counts for all such offenses, and the defendant may be convicted
of all of them.’
{¶21} “R.C. 2941.25(A) clearly provides that there may be only one conviction for
allied offenses of similar import. Because a defendant may be convicted of only one
offense for such conduct, the defendant may be sentenced for only one offense. This
court has previously said that allied offenses of similar import are to be merged at
sentencing. See State v. Brown, 119 Ohio St. 3d 447, 2008-Ohio-4569, * * *, ¶43; State
v. McGuire (1997), 80 Ohio St. 3d 390, 399, * * *. Thus, a trial court is prohibited from
imposing individual sentences for counts that constitute allied offenses of similar import.
A defendant’s plea to multiple counts does not affect the court’s duty to merge those allied
counts at sentencing. This duty is mandatory, not discretionary. Therefore, we conclude
that when a sentence is imposed on multiple counts that are allied offenses of similar
import in violation of R.C. 2941.25(A), R.C. 2953.08(D) does not bar appellate review of
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that sentence even though it was jointly recommended by the parties and imposed by the
court.” (Emphasis sic.) (Parallel citations omitted.)
{¶22} The Underwood court also held, at ¶10-16:
{¶23} “A defendant’s right to appeal a sentence is based on specific grounds
stated in R.C. 2953.08(A):
{¶24} “‘In addition to any other right to appeal and except as provided in division
(D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal
as a matter of right the sentence imposed upon the defendant on one of the following
grounds:
{¶25} “‘ * * *
{¶26} “‘(4) The sentence is contrary to law.’
{¶27} “Subsection (D)(1) provides an exception to the defendant’s ability to
appeal:
{¶28} “‘* * *
{¶29} “‘A sentence imposed upon a defendant is not subject to review under this
section if the sentence is authorized by law, has been recommended jointly by the
defendant and the prosecution in the case, and is imposed by a sentencing judge.’
{¶30} “In other words, a sentence that is ‘contrary to law’ is appealable by a
defendant; however, an agreed-upon sentence may not be if (1) both the defendant and
the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3)
the sentence is authorized by law. R.C. 2953.08(D)(1). If all three conditions are met, the
defendant may not appeal the sentence.”
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{¶31} The Underwood court then analyzed decisions from various courts of
appeals, holding that agreed sentencing entries were only contrary to law when the
sentence imposed was outside the statutory parameters. Id. at ¶19. The court went on
to hold, at ¶20:
{¶32} “We do not agree with such a narrow interpretation of ‘authorized by law.’
Adopting this reasoning would mean that jointly recommended sentences imposed within
the statutory range but missing mandatory provisions, such as postrelease control (R.C.
2929.19(B)(3)(c)) or consecutive sentences (R.C. 2929.14(D) and (E)), would be
unreviewable. Our recent cases illustrate that sentences that do not comport with
mandatory provisions are subject to total resentencing. See, e.g., State v. Bezak, 114
Ohio St. 3d 94, 2007-Ohio-3250, * * *, ¶11. Nor can agreement to such sentences insulate
them from appellate review, for they are not authorized by law. We hold that a sentence
is ‘authorized by law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only
if it comports with all mandatory sentencing provisions. A trial court does not have the
discretion to exercise its jurisdiction in a manner that ignores mandatory statutory
provisions. See State v. Simpkins, 117 Ohio St. 3d 420, 2008-Ohio-1197, * * *, ¶27 (‘Every
judge has a duty to impose lawful sentences’).” (Parallel citations omitted.”)
{¶33} Of course, this narrow interpretation of “authorized by law,” disapproved by
Underwood, is exactly the one we applied in dismissing Mr. Tisdale’s direct, albeit delayed
appeal, in Tisdale I. Id. at ¶11-12.
{¶34} The court further refined its analysis of merger doctrine in State v. Williams,
148 Ohio st.3d 403, 2016-Ohio-7658. It held that when a trial court recognizes that
offenses may be allied offenses of similar import, it must conduct merger, or the
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sentences are void. Id. at ¶28. However, when it finds the offenses in question are not
allied offenses of similar import, or makes no finding whatsoever on the issue, the matter
can only be assigned as error on direct appeal. Id. at ¶26.
{¶35} In Mr. Tisdale’s case, the issue of whether various of his offenses were
allied offenses of similar import was never discussed by the trial court at sentencing.
Consequently, pursuant to Williams, he had to address this issue on direct appeal.
However, he was deprived of the chance to do so, since, pursuant to Underwood, our
reasons for dismissing his appeal were erroneous.
{¶36} The issue is raised, therefore, of whether the holdings in Underwood have
a retroactive effect. In State v. Parker, the Eighth District recently undertook an extensive
review of when a decision of the Supreme Court of Ohio has retroactive effect. The Eighth
District wrote, at ¶18-21:
{¶37} “Under the analysis set forth in Teague v. Lane, 489 U.S. 288, * * * (1989),
a new constitutional rule of criminal procedure applies to criminal cases still pending on
direct appeal, but generally does not apply to a conviction that was final when the new
rule was announced. Id. at 295, * * * . However, two categories of decisions fall outside
this general bar on retroactivity:
{¶38} “First, ‘(n)ew substantive rules generally apply retroactively.’ Schriro v.
Summerlin, 542 U.S. 348, 351, * * * (2004) (* * *). Second, new ‘“watershed rules of
criminal procedure,”’ which are procedural rules ‘implicating the fundamental fairness and
accuracy of the criminal proceeding,’ will also have retroactive effect. Saffle v. Parks, 494
U.S. 484, 495, * * * (1990) (quoting Teague at 311-313, * * *). Welch v. United States,
578 U.S. ––––, 136 S. Ct. 1257, * * * (2016).
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{¶39} “The court recently explained the distinction between retroactive
substantive rules and nonretroactive procedural rules as follows:
{¶40} “Substantive rules, then, set forth categorical constitutional guarantees that
place certain criminal laws and punishments altogether beyond the State’s power to
impose. It follows that when a State enforces a proscription or penalty barred by the
Constitution, the resulting conviction or sentence is, by definition, unlawful. Procedural
rules, in contrast, are designed to enhance the accuracy of a conviction or sentence by
regulating ‘the manner of determining the defendant’s culpability.’ Montgomery v.
Louisiana, 577 U.S. ––––, 136 S. Ct. 718, * * * (2016), quoting Schriro, 542 U.S. at 353, *
* *.
{¶41} “In determining whether a rule is substantive or procedural, the Welch court
explained:
{¶42} “‘A rule is substantive rather than procedural if it alters the range of conduct
or the class of persons that the law punishes (including) decisions that narrow the scope
of a criminal statute by interpreting its terms, as well as constitutional determinations that
place particular conduct or persons covered by the statute beyond the State’s power to
punish.’578 U.S. at ––––, 136 S. Ct. 1257, ¶8, quoting Schriro, 542 U.S. at 353, 124 S. Ct.
2519.
{¶43} “In other words, substantive rules ‘either (a) prohibit criminal punishment for
certain types of primary conduct, or (b) forbid the imposition of certain categories of
punishment for particular classes of defendants.’ O’Dell v. Netherland, 521 U.S. 151,
157, * * * (1997). Conversely, procedural rules ‘regulate only the manner of determining
the defendant’s culpability.’ Schriro, 542 U.S. at 353.” (Parallel citations omitted.)
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{¶44} Based on the foregoing, I conclude Underwood announced a new
substantive rule of law, since it increased the range of defendants permitted to appeal an
agreed judgment entry of sentence, beyond the narrow class of those whose sentences
were outside the statutory parameters for the offense committed. Consequently,
Underwood applies to Mr. Tisdale’s case. Further, he may take advantage of it presently,
since we erroneously deprived him of his direct appeal. In effect, this is his direct appeal.
On remand, the trial court shall conduct a hearing to determine what, if any, of Mr.
Tisdale’s offenses are subject to merger.
{¶45} I respectfully dissent.
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