State v. Wilson

[Cite as State v. Wilson, 2015-Ohio-5465.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : PER CURIAM OPINION
Plaintiff-Appellee, :
CASE NO. 2015-L-067
- vs - :
ORLANDO WILSON, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR
000427.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).
Orlando Wilson, Pro se, PID# A642-635, Richland Correctional Institution, P.O. Box
8107, 1001 Olivesburg Road, Mansfield, OH 44905 (Defendant-Appellant).
PER CURIAM
{¶1} Defendant-appellant, Orlando Wilson, appeals from the Judgment Entry of
the Lake County Court of Common Pleas, denying his Notice of Plain Error Pursuant to
Cr.R. 52(B). The issue to be determined by this court is whether alleged sentencing
errors raised subsequent to a direct appeal are barred by res judicata. For the following
reasons, we affirm the judgment of the court below.
{¶2} On August 27, 2012, the Lake County Grand Jury issued an Indictment,
charging Wilson with two counts of Grand Theft, felonies of the fourth degree, in
violation of R.C. 2913.02(A)(1); two counts of Safecracking, felonies of the fourth
degree, in violation of R.C. 2911.31; and two counts of Receiving Stolen Property,
felonies of the fourth degree, in violation of R.C. 2913.51(A).
{¶3} On January 11, 2013, Wilson entered a Written Plea of Guilty to two
counts of Grand Theft and one count of Safecracking. A Judgment Entry was filed on
the same date, accepting the plea and entering a Nolle Prosequi on the remaining
counts.
{¶4} A sentencing hearing was held on July 9, 2013, at which the court denied
Wilson’s request to withdraw his plea. A Judgment Entry of Sentence was filed on July
12, 2013, ordering Wilson to serve a prison term of 30 months, to be served
consecutively with a sentence in Cuyahoga Case No. CR-12-568655.
{¶5} Wilson appealed to this court, arguing that his plea was not given
knowingly, intelligently, and voluntarily. His conviction was affirmed in State v. Wilson,
11th Dist. Lake No. 2013-L-075, 2014-Ohio-2014.
{¶6} On January 14, 2015, Wilson filed a Notice of Plain Error Pursuant to
Cr.R. 52(B) in the trial court, in which he argued that various sentencing errors had
been committed. The State filed a Response on January 16, 2015, asserting that these
claims were barred by the doctrine of res judicata and could have been raised on direct
appeal. Wilson filed a Reply on January 30, 2015.
{¶7} The trial court issued a Judgment Entry on May 19, 2015, denying
Wilson’s Notice of Plain Error.
{¶8} Wilson timely appeals and raises the following assignments of error:
{¶9} “[1.] The trial court abused its discretion in denying appellant’s Cr.R.
52(B) notice of plain error where the sentence consisted of allied offenses.
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{¶10} “[2.] The sentence is void where the trial court had no statutory authority
to impose consecutive sentences in Case No. 12-CR-000427 (Lake County) and Case
No. CR-12-568655 (Cuyahoga County).
{¶11} “[3.] The sentence is void where the trial court failed to make the
statutorily required findings pursuant to O.R.C. 2929.14(C)(4) prior to imposing
consecutive sentences in Case No. 12-CR-000427 and Case No. CR-12-568655.”
{¶12} Wilson’s assignments of error will be considered jointly, as the analysis on
these issues is interrelated. First, Wilson contends that the trial court erred in failing to
merge certain offenses prior to sentencing.
{¶13} This argument is barred by the doctrine of res judicata. “[A] convicted
defendant is precluded under the doctrine of res judicata 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 appeal from that judgment.” State v.
Hobbs, 11th Dist. Lake No. 2010-L-064, 2011-Ohio-1298, ¶ 39, citing State v. Szefcyk,
77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996).
{¶14} “This court has continually held that when an appellant does not raise the
issue of allied offenses of similar import in a timely direct appeal, the challenge is barred
by the doctrine of res judicata. This is also the law throughout Ohio.” State v. Cline,
11th Dist. Geauga No. 2012-G-3101, 2013-Ohio-1843, ¶ 15; State v. Britta, 11th Dist.
Lake No. 2011-L-041, 2011-Ohio-6096, ¶ 17, citing Smith v. Voorhies, 119 Ohio St.3d
345, 2008-Ohio-4479, 894 N.E.2d 44, ¶ 10-11 (“‘allied-offense claims are
nonjurisdictional,’ and, thus, barred by the doctrine of res judicata where they were
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raised, or could have been raised, on direct appeal”); State v. Cioffi, 11th Dist. Trumbull
Nos. 2011-T-0072 & 2011-T-0073, 2012-Ohio-299, ¶ 14.
{¶15} Wilson pursued a direct appeal before this court where he failed to raise
the issue of allied offenses. This argument is now barred by the doctrine of res judicata
and we will not consider its merits.
{¶16} Wilson also argues that the trial court erred in ordering him to serve his
sentence consecutive with a sentence in a separate Cuyahoga County conviction and in
failing to consider the appropriate factors for consecutive sentencing. To avoid the
application of the doctrine of res judicata, Wilson argues that the alleged errors
rendered his sentence void.
{¶17} A void sentence “is not precluded from appellate review by principles of
res judicata, and may be reviewed at any time, on direct appeal or by collateral attack.”
Britta, 2011-Ohio-6096, at ¶ 14, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-
6238, 942 N.E.2d 332, paragraph one of the syllabus. “[P]rinciples of res judicata do
not apply to void sentences because, by definition, a void sentence means that no final
judgment of conviction has been announced.” (Citation omitted.) State v. Wells, 11th
Dist. Ashtabula No. 2013-A-0014, 2013-Ohio-5821, ¶ 31. In contrast, “a voidable
judgment is one rendered by a court that has both jurisdiction and authority to act,” but
is “invalid, irregular, or erroneous.” Cioffi, 2012-Ohio-299, at ¶ 12, citing State v.
Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶ 12.
{¶18} It has generally been held that sentencing errors do not render a judgment
void because they have no effect upon the trial court’s jurisdiction. Fischer at ¶ 7. The
exception to this rule, which is applied in limited circumstances, is that “a sentence that
does not contain a statutorily mandated term is a void sentence.” Simpkins at ¶14;
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State v. Brown, 7th Dist. Mahoning No. 14 MA 37, 2014-Ohio-5832, ¶ 31 (the void
sentence “exception [to the doctrine of res judicata] is very limited and has been applied
sparingly”). Such is not the case here, where there was no mandatory sentence
required but, rather, an issue related to the consecutive nature of the sentences.
{¶19} Alleged errors in consecutive sentencing do not render a sentence void.
The Supreme Court “has declined to find sentences void based on the court’s failure to
comply with certain sentencing statutes, including the consecutive sentencing statute.”
State v. Butcher, 4th Dist. Meigs No. 14CA7, 2015-Ohio-4249, ¶ 27; State v. Holdcroft,
137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.2d 382, ¶ 8 (challenges to consecutive
sentences must be brought on direct appeal).
{¶20} While Wilson is correct that a void sentence can be challenged at any
time, this type of case does not include the limited circumstances under which
sentences have been declared void and, instead, sets forth an error that the Supreme
Court has specifically found must be raised on direct appeal. Thus, the consecutive
sentencing issues raised by Wilson are also barred by the doctrine of res judicata.
{¶21} Wilson’s first, second, and third assignments of error are without merit.
{¶22} For the foregoing reasons, the Judgment Entry of the Lake County Court
of Common Pleas, denying Wilson’s Notice of Plain Error Pursuant to Cr.R. 52(B), is
affirmed. Costs to be taxed against appellant.
TIMOTHY P. CANNON, P.J., DIANE V. GRENDELL, J., COLLEEN MARY O’TOOLE,
J., concur.
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