State v. Walker

[Cite as State v. Walker, 2018-Ohio-3542.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 18AP-185
v. : (C.P.C. No. 16CR-4129)
John T. Walker, : (ACCELERATED CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 4, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Barbara A.
Farnbacher, for appellee.
On brief: John T. Walker, pro se.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, John T. Walker, pro se, appeals the March 2, 2018
judgment of the Franklin County Court of Common Pleas denying his postconviction
motion to vacate void judgment. For the reasons that follow, we affirm the judgment of the
trial court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} On August 1, 2016, the Franklin County Grand Jury issued an indictment
charging appellant with burglary, grand theft of a firearm or dangerous ordinance, theft
from a person in a protected class, tampering with evidence, and having weapons while
under disability. The first three counts included firearm specifications.
{¶ 3} On April 3, 2017, while represented by counsel, appellant entered guilty pleas
to multiple felony charges including burglary with a firearm specification, theft of a firearm,
and theft from a person in a protected class. The parties jointly recommended an aggregate
No. 18AP-185 2
sentence of 4 years and 11 months to be run consecutively to appellant's burglary conviction
in Franklin C.P. No. 16CR-3945. The trial court imposed that jointly recommended
sentence. Appellant did not pursue a timely appeal from his convictions and sentences.
{¶ 4} On February 6, 2018, appellant filed a pro se motion to vacate void judgment,
arguing that his burglary and theft convictions were allied offenses of similar import and
the sentences should have merged. The trial court ruled that:
This matter came before the Court on Defendant's Motion to
Vacate Void Judgment.
The Court, after full and careful consideration, finds said
motion not well taken and hereby DENIES the same.
(Mar. 2, 2018 Decision and Entry.)
II. ASSIGNMENTS OF ERROR
{¶ 5} Appellant appeals and assigns the following errors for our review:
[I.] THE TRIAL COURT ABUSED ITS DISCRETION WHEN
IT DENIED VACATION OF A VOID JUDGMENT.
[II.] PUNISHMENT FOR ALLIED OFFENSES OF SIMILAR
IMPORT IS NOT AUTHORIZED BY LAW AND ALSO
VIOLATES DOUBLE JEOPARDY PROTECTIONS; SO
RENDERING SENTENCES VOID AB INITIO; AND
WARRANTS ABSOLUTE DISMISSAL OF ENTIRE CASE.
III. DISCUSSION–CLAIMS BARRED BY RES JUDICATA
{¶ 6} Appellant contends that his sentences for burglary and theft should have
merged. His motion is properly construed as a petition for postconviction relief. It is well
settled that "[w]here 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 (1997), at paragraph one
of the syllabus. See also State v. Smotherman, 10th Dist. No. 16AP-471, 2016-Ohio-8133,
¶ 6. Furthermore, R.C. 2953.21(K) specifies that R.C. 2953.21 "is the exclusive remedy by
which a person may bring a collateral challenge to the validity of a conviction or sentence
in a criminal case."
No. 18AP-185 3
{¶ 7} As such, appellant's February 6, 2018 motion is a petition for postconviction
relief. We review a trial court's decision on a petition for postconviction relief for abuse of
discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 58; State v. Sidibeh,
10th Dist. No. 12AP-498, 2013-Ohio-2309, ¶ 7.
{¶ 8} "Res judicata is applicable in all postconviction relief proceedings." State v.
Szefcyk, 77 Ohio St.3d 93, 95 (1996). As stated by the Supreme Court of Ohio:
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.
(Emphasis sic.) State v. Perry, 10 Ohio St.2d 175 (1967), paragraph nine of the syllabus.
We have held that merger issues are subject to res judicata and thus must be raised on direct
appeal. State v. Adams, 10th Dist. No. 14AP-623, 2015-Ohio-868, ¶ 7-8; State v. Strickland,
10th Dist. No. 14AP-307, 2014-Ohio-5105, ¶ 13-14. We have also held repeatedly that
purported merger errors under R.C. 2941.25 do not result in a void sentence and are thus
barred by res judicata if not raised on direct appeal. State v. Greenberg, 10th Dist. No.
12AP-11, 2012-Ohio-3975, ¶ 12; State v. Myers, 10th Dist. No. 11AP-909, 2012-Ohio-2733,
¶ 5-7.
{¶ 9} As a result, "[p]ostconviction review is a narrow remedy, since res judicata
bars any claim that was or could have been raised at trial or on direct appeal." State v.
Steffen, 70 Ohio St.3d 399, 410 (1994). Appellant's merger arguments do not rely on any
evidence outside the record. Appellant had the opportunity to raise his merger arguments
at sentencing or thereafter in a direct appeal. Appellant failed to do so and as a result his
claims are barred by res judicata. See State v. Ketterer, 140 Ohio St.3d 400, 2014-Ohio-
3973, ¶ 10 (holding that res judicata bars review of postconviction merger claims); State v.
Garnett, 10th Dist. No. 12AP-594, 2013-Ohio-1210, ¶ 9 (finding a postconviction merger
argument was barred by res judicata). As his claims are barred, appellant's assignments of
error are overruled.
No. 18AP-185 4
IV. DISPOSITION
{¶ 10} Based on the foregoing, appellant's two assignments of error are overruled.
Having overruled appellant's assignments of error, the judgment of the Franklin County
Court of Common Pleas is affirmed.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.
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